                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                 October 16, 2006

                                                          Charles R. Fulbruge III
                                                                  Clerk
                           No. 05-41013
                         Summary Calendar


UNITED STATES OF AMERICA,

                                    Plaintiff-Appellee,

versus

MAURICIO ALEJANDRO SAUCEDO-ROMAN, also known
as Mauricio Saucedo-Roman,

                                    Defendant-Appellant.

                      --------------------
          Appeal from the United States District Court
               for the Southern District of Texas
                        (5:05-CR-131-ALL)
                      --------------------

Before SMITH, WIENER, and OWEN, Circuit Judges.

PER CURIAM:*

    Defendant-Appellant Mauricio Alejandro Saucedo-Roman (Saucedo)

appeals the sentence imposed by the district court following his

guilty-plea conviction for illegal reentry into the United States

after deportation.   He argues that the district court erred in

increasing his offense level under the Sentencing Guidelines based

on a determination that his prior Michigan conviction for felonious

assault was a crime of violence under U.S.S.G. § 2L1.2.              The

district court determined that the increase was warranted because


     *
       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this opinion should not be published and is not precedent except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.
the   Michigan   felonious-assault          offense    was    the   equivalent   of

aggravated assault, one of the enumerated crimes of violence under

§ 2L1.2(b)(1)(A)(ii) & comment.(n.1(B)(iii)).                   We review        the

district   court’s    legal     characterization          of    Saucedo’s   prior

conviction under § 2L1.2 de novo.             See United States v. Sanchez-

Ruedas, 452 F.3d 409, 412 (5th Cir. 2006), cert. denied, (Oct. 2,

2006) (No. 06-5932).

      A prior conviction will qualify as a crime of violence if it

is specifically enumerated in § 2L1.2, comment. (n.1(B)(iii)),

regardless whether it has the use of force as an element.                   United

States v. Izaguirre- Flores, 405 F.3d 270, 275 n.14 (5th Cir.),

cert. denied, 126 S. Ct. 253 (2005).                  In determining whether a

state conviction constitutes an “enumerated offense” for purposes

of § 2L1.2’s crime-of-violence enhancement, the court uses a

“common sense approach,” defining each enumerated offense by its

“generic, contemporary meaning.”            Id. at 275 & n.16.

      Under the Michigan Penal Code, “a person who assaults another

person with a gun, revolver, pistol, knife, iron bar, club, brass

knuckles, or other dangerous weapon without intending to commit

murder or to inflict great bodily harm less than murder is guilty”

of felonious assault.       MICH. COMP. LAWS § 750.82 (2002).           The Model

Penal Code states:        “A person is guilty of aggravated assault if

he:   (a)attempts to cause serious bodily injury to another, or

causes   such    injury    purposely,       knowingly    or    recklessly   under

circumstances manifesting extreme indifference to the value of

                                        2
human life; or (b) attempts to cause or purposely or knowingly

causes bodily injury to another.”           Model Penal Code § 211.1(2).

    Michigan’s provision is sufficiently similar to the generic

contemporary definition of aggravated assault to qualify as an

enumerated crime of violence.       Saucedo’s argument that the offense

of felonious assault does not fall within the ordinary meaning of

aggravated assault because, under Michigan law, felonious assault

can be committed in ways that do not involve bodily injury is

without merit.      See Sanchez-Ruedas, 452 F.3d at 413.             His argument

that Michigan felonious-assault offenses include battery offenses

which may be committed by mere offensive touching also is without

merit.    Id.

     Saucedo’s constitutional challenge to 18 U.S.C. § 1326(b) is

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

(1998).         Although   he   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).                   Saucedo 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.

     AFFIRMED.



                                       3
4
