                                                              United States Court of Appeals
                                                                       Fifth Circuit
                                                                    F I L E D
                IN THE UNITED STATES COURT OF APPEALS
                        FOR THE FIFTH CIRCUIT                      February 14, 2007

                                                                Charles R. Fulbruge III
                               No. 06-40826                             Clerk
                             Summary Calendar




UNITED STATES OF AMERICA,

                                         Plaintiff-Appellee,

versus

ENRIQUE DAVILA-SOLIS,
also known as Roberto Demetrio Godoy,

                                         Defendant-Appellant.



                        --------------------
            Appeal from the United States District Court
                 for the Southern District of Texas
                        No. 1:05-CR-1035-ALL
                        --------------------



Before SMITH, WIENER, and OWEN, Circuit Judges.

PER CURIAM:*

     Enrique Davila-Solis appeals his conviction of, and sentence

for, illegal reentry after having been deported following a convic-

tion of aggravated felony in violation of 8 U.S.C. § 1326(a)

and (b).   Davila-Solis contends the district court erred by apply-

ing an eight-level increase to his offense level, pursuant to



     *
        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opinion should not be published and is not precedent except under the limited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.
U.S.S.G. § 2L1.2(b)(1)(C), because the conviction that resulted in

his deportation, misdemeanor assault in violation of TEX. PENAL CODE

ANN. 22.01(a)(1), is not a crime of violence under 18 U.S.C. § 16

and   does    not   constitute   an   aggravated   felony   under   U.S.S.G.

§ 2L1.2(b)(1)(C).

      In United States v. Villegas-Hernandez, 468 F.3d 874 (5th Cir.

2006), this court determined that use of force is not an element of

§ 22.01(a)(1).      The district court therefore erred in applying an

enhancement based on this factor.          The government concedes that

based on Villegas-Hernandez, the court so erred, but the government

asserts the error is harmless.         Because, however, the government

has failed to demonstrate beyond a reasonable doubt that the court

would have imposed the same sentence absent the error, see U.S. v.

Kay, 83 F.3d 98, 101 (5th Cir. 1996); U.S. v. Pineiro, 410 F.3d

282, 286 (5th Cir. 2005), the sentence is vacated, and this matter

remanded for resentencing in accordance with this opinion.

      Davila-Solis also challenges the constitutionality of the

treatment of prior felony and aggravated felony convictions under

8 U.S.C. § 1326(b) as sentencing factors rather than elements of

the offense that must be found by a jury.          This challenge is fore-

closed by Almendarez-Torres v. United States, 523 U.S. 224, 235

(1998).      Although Davila-Solis suggests that a majority of the Su-

preme Court would overrule Almendarez-Torres in light of Apprendi

v. New Jersey, 530 U.S. 466 (2000), this court has repeatedly re-

jected such arguments and has declared Almendarez-Torres binding.

                                       2
See United States v. Garza-Lopez, 410 F.3d 268, 276 (5th Cir.),

cert. denied, 126 S. Ct. 298 (2005).     See also Rangel-Reyes v.

United States, 126 S. Ct. 2873 (2006).   Davila-Solis concedes his

argument is foreclosed but raises it preserve it for further

review.

     CONVICTION AFFIRMED; SENTENCE VACATED; REMANDED for resen-

tencing.




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