                                                           United States Court of Appeals
                                                                    Fifth Circuit
                                                                 F I L E D
                   IN THE UNITED STATES COURT OF APPEALS
                           FOR THE FIFTH CIRCUIT                 October 6, 2006

                                                              Charles R. Fulbruge III
                                                                      Clerk
                               No. 05-11371
                             Summary Calendar


UNITED STATES OF AMERICA,

                                        Plaintiff-Appellee,

versus

LORENZO OLIVAS-PENA, also known as Juan Manuel
Castanon-Maciel, also known as Lorenzo Pena-Martinez

                                        Defendant-Appellant.

                            --------------------
               Appeal from the United States District Court
                    for the Northern District of Texas
                          USDC No. 1:05-CR-39-ALL
                            --------------------

Before SMITH, WIENER, and OWEN, Circuit Judges.

PER CURIAM:*

       Lorenzo Olivas-Pena appeals his conviction and sentence for

unlawful reentry following deportation subsequent to an

aggravated felony conviction, a violation of 8 U.S.C. § 1326(a),

(b).       In his first issue on appeal, Olivas-Pena asserts that the

district court erred in applying a 16-level enhancement pursuant

to U.S.S.G. § 2L1.2 for a prior crime of violence conviction.

Oliva-Pena was convicted under California Penal Code § 288(b) for

lewd conduct with a minor.       Olivas-Pena preserved error by


       *
       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this opinion should not be published and is not precedent except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.
                           No. 05-11371
                                -2-

objecting to the enhancement, and we review the district court’s

determination de novo.   See United States v. Calderon-Pena, 383

F.3d 254, 256 (5th Cir. 2004) (en banc); see also United States

v. Villanueva, 408 F.3d 193, 202, 203 n.9 (5th Cir.), cert.

denied, 126 S. Ct. 268 (2005).

     The term “crime of violence” under § 2L1.2 means (1) any of

certain enumerated offenses, or (2) “any offense under federal,

state, or local law that has as an element the use, attempted

use, or threatened use of physical force against the person of

another.”   U.S.S.G. § 2L1.2, comment. (n.1(B)(iii)).   We need not

reach Olivas-Pena’s argument that his offense does not meet the

second prong of the definition, as we conclude that it

constitutes the enumerated offense of sexual abuse of a minor.

Where, as here, the enhancement provision does not define the

enumerated offense, we define it using a “common sense” approach,

looking to the offense’s ordinary, contemporary meaning.     See

United States v. Izaguirre-Flores, 405 F.3d 270, 275-76 (5th

Cir.), cert. denied, 126 S. Ct. 253 (2005).   Using that approach,

we have defined “sexual abuse of a minor” to include conduct with

or in the presence of a minor, the purpose of which is the

arousal or gratification of sexual desires.   See id. at 275; see

also United States v. Zavala-Sustaita, 214 F.3d 601, 604-05 (5th

Cir. 2000).   The statute at issue in this case criminalizes the

commission of lewd or lascivious acts on or with the body of a

minor in order to gratify lust, passion, or sexual desires.     See
                            No. 05-11371
                                 -3-

CAL. PENAL CODE § 288(a), (b).   Such an offense fits within the

ordinary, contemporary definition of sexual abuse of a minor.

See Izaguirre-Flores, 405 F.3d at 276-77; see also Zavala-

Sustaita, 214 F.3d at , 604-05.     Accordingly, we find no error in

the district court’s imposition of the 16-level enhancement.

     In his second point of error, Olivas-Pena argues that

§ 1326(b)’s treatment of prior felony and aggravated felony

convictions as sentencing factors rather than elements of the

offense that must be found by a jury is unconstitutional in light

of Apprendi v. New Jersey, 530 U.S. 466 (2000).     Olivas-Pena’s

constitutional challenge to § 1326(b) is foreclosed by

Almendarez-Torres v. United States, 523 U.S. 224, 235 (1998).

Although Olivas-Pena contends that Almendarez-Torres was

incorrectly decided and that a majority of the Supreme Court

would overrule Almendarez-Torres in light of Apprendi, we have

repeatedly rejected such arguments on the basis that Almendarez-

Torres remains binding.    See United States v. Garza-Lopez, 410

F.3d 268, 276 (5th Cir.), cert. denied, 126 S. Ct. 298 (2005).

Olivas-Pena properly concedes that his argument is foreclosed in

light of Almendarez-Torres and circuit precedent, but he raises

it here to preserve it for further review.

     For the foregoing reasons, the judgment of the district

court is AFFIRMED.
