                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT               September 19, 2006

                                                         Charles R. Fulbruge III
                                                                 Clerk
                           No. 05-20496
                         Summary Calendar



UNITED STATES OF AMERICA,

                                    Plaintiff-Appellee,

versus

NOE NINO-JARAMILLO,

                                    Defendant-Appellant.

                      --------------------
          Appeal from the United States District Court
               for the Southern District of Texas
                    USDC No. 4:04-CR-572-ALL
                      --------------------

Before GARWOOD, DeMOSS and BENAVIDES, Circuit Judges.

PER CURIAM:*

     Noe Nino-Jaramillo appeals his guilty-plea conviction and

sentence for violating 8 U.S.C. § 1326(a) and (b)(2) by being

found in the United States without permission, following

deportation.   Citing Apprendi v. New Jersey, 530 U.S. 466 (2000),

Nino-Jaramillo challenges as unconstitutional § 1326(b)’s

treatment of prior felony and aggravated felony convictions as

sentencing factors rather than elements of the offense.       Nino-

Jaramillo’s constitutional challenge is foreclosed 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this opinion should not be published and is not precedent except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. 05-20496
                                -2-

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

Although Nino-Jaramillo 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).   Nino-Jaramillo 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 first time on appeal, Nino-Jaramillo argues that the

district court erred by enhancing his sentence pursuant to

§ 2L1.2(b)(1)(A)(ii)(2004) based on its determination that his

1991 conviction under TEX. PENAL   CODE   § 21.11(a) for indecency with

a child was a crime of violence.      A “crime of violence” for

purposes of § 2L1.2(b)(1)(A)(ii) is defined to include “sexual

abuse of a minor.”   See § 2L1.2, comment. (n.1(B)(iii)).

However, Nino-Jaramillo argues that his conviction under

§ 21.11(a) did not constitute “sexual abuse of a minor,” because

the victim of an offense under § 21.11(a) can be as old as a day

under seventeen and such an individual would not fall under the

generic, contemporary meaning of the term minor as it is used in

the vast majority of statutes proscribing sexual activity with or

against persons below a certain age.
                           No. 05-20496
                                -3-

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

Cir. 2000), this court held that the victim of a § 21.11(a)(2)

offense, “‘a child younger than 17 years,’” is clearly a

“‘minor.’”   It also held that a violation of § 21.11(a)(2) was

“sexual abuse of a minor” as that term is used in its “ordinary,

contemporary, [and] common” meaning.     Id. at 604-05.   Although it

is unclear whether Nino-Jaramillo was convicted under

§ 21.11(a)(1) or (2) and the Zavala-Sustaita court reviewed an

enhancement imposed under a previous version of § 2L1.2, its

reasoning is dispositive in this case.    Nino-Jaramillo has not

shown error, plain or otherwise.   United States v. Cotton, 535

U.S. 625, 631-32 (2002).

     The judgment of the district court is AFFIRMED.
