                                                                                      United States Court of Appeals
                                                                                               Fifth Circuit
                                                                                             F I L E D
                                                                                              June 10, 2004
                      IN THE UNITED STATES COURT OF APPEALS
                                                                                         Charles R. Fulbruge III
                                   FOR THE FIFTH CIRCUIT                                         Clerk



                                            No. 03-41451
                                          Summary Calendar



UNITED STATES OF AMERICA,

                                                                                        Plaintiff-
                                                           Appellee,

                                                  versus

PEDRO AVILLA,

                                                                                      Defendant-
                                                           Appellant.

                         ----------------------------------------------------------
                            Appeal from the United States District Court
                                  for the Southern District of Texas
                                    USDC No. L-03-CR-455-ALL
                         ----------------------------------------------------------

Before SMITH, DeMOSS and STEWART, Circuit Judges.

PER CURIAM:*

       Pedro Avilla appeals his guilty-plea conviction and sentence for being found in the United

States after deportation in violation of 8 U.S.C. § 1326(b). Avilla argues that the district court erred

in increasing his offense level by 16 points based on his prior aggravated assault conviction pursuant

to U.S.S.G. § 2L1.2(b)(1)(A). Avilla did not object to this enhancement in the district court and,

       *
           Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be
published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
therefore, review is limited to plain error. See United States v. Rodriguez, 15 F.3d 408, 414-15 (5th

Cir. 1994). Because Avilla had a prior conviction for aggravated assault which falls within the

definition of a crime of violence under the application notes to § 2L1.2, the 16-level enhancement of

Avilla’s sentence under § 2L1.2(b)(1)(A) was not error, plain or otherwise. See § 2L1.2, comment.

(n.1(B)(ii)); United States v. Ramirez, __ F.3d __ (5th Cir. Apr. 5, 2004), 2004 WL 828096 at *3.

       For the first time on appeal, Avilla argues that the “felony” and “aggravated felony” provisions

of 8 U.S.C. § 1326(b)(1) and (2) are unconstitutional in view of Apprendi v. New Jersey, 530 U.S.

466 (2000). He concedes that this argument is foreclosed by Almendarez-Torres v. United States,

523 U.S. 224 (1998), but states that he is raising it to preserve it for further review. Apprendi did

not overrule Almendarez-Torres. United States v. Hernandez-Avalos, 251 F.3d 505, 507 & n.1 (5th

Cir. 2001). We must follow Almendarez-Torres until the Supreme Court overrules it. Hernandez-

Avalos, 251 F.3d at 507 n.1.

       AFFIRMED.




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