                                                             United States Court of Appeals
                                                                      Fifth Circuit
                                                                   F I L E D
                 IN THE UNITED STATES COURT OF APPEALS
                                                                    June 26, 2006
                           FOR THE FIFTH CIRCUIT
                                                               Charles R. Fulbruge III
                                                                       Clerk

                               No. 05-41245
                             Summary Calendar



UNITED STATES OF AMERICA,
                                        Plaintiff-Appellee,

versus

ADAN VALDIVIA-DE ARCOS,
                                        Defendant-Appellant.

                         --------------------
             Appeal from the United States District Court
                  for the Southern District of Texas
                            (1:05-CR-34-1)
                         --------------------

Before KING, WIENER, and DeMOSS, Circuit Judges.

PER CURIAM:*

     Defendant-Appellant       Adan    Valdivia-De     Arcos     (Valdivia)

challenges his conviction and sentence under 8 U.S.C. § 1326 for

being present in the United States illegally after having been

deported following conviction for an aggravated felony.             He first

asserts that the district court erred by finding that his prior

Texas conviction for assault of a family member was a crime of

violence under U.S.S.G. § 2L1.2(b)(1)(A)(ii).         Section 22.01(a)(1)

of the Texas Penal code criminalizes “intentionally, knowingly, or

recklessly     caus[ing]   bodily   injury   to   another,   including     the


     *
       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this opinion should not be published and is not precedent except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.
person’s spouse.”       As the statute provides several disjunctive

elements, we look to the indictment to determine which of them

Valdivia was convicted of having committed.              United States v.

Calderon-Pena,   383    F.3d   254,    258   (5th   Cir.)(en   banc).     The

indictment charged him with knowingly and intentionally causing

bodily injury to the victim, so his Texas assault offense was a

crime of violence for purposes of § 2L1.2(b)(1)(A)(ii).                 See §

2L1.2, comment. (n.1(B)(iii)); United States v. Vargas-Duran, 356

F.3d 598, 600-02, 605-06 (5th Cir. 2004)(en banc); Calderon-Pena,

383 F.3d 254 at 258.

     Valdivia    next   contends      that   Almendarez-Torres   v.     United

States, 523 U.S. 224, 235 (1998), was incorrectly decided and that

a majority of the Supreme Court would overrule it in light of

Apprendi v. New Jersey, 530 U.S. 466 (2000).            We have repeatedly

rejected such arguments because Almendarez-Torres remains binding.

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

cert. denied, 126 S. Ct. 298 (2005).           Valdivia 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.

     The judgment of the district court is

AFFIRMED.




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