                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                 January 12, 2007

                                                         Charles R. Fulbruge III
                           No. 06-40512                          Clerk
                         Summary Calendar


UNITED STATES OF AMERICA,

                                    Plaintiff-Appellee,

versus

JOSE ANGEL ACOSTA,

                                    Defendant-Appellant.

                       --------------------
          Appeal from the United States District Court
               for the Southern District of Texas
                      USDC No. 7:05-CR-1019
                       --------------------

Before DeMOSS, STEWART, and PRADO, Circuit Judges.

PER CURIAM:*

     Jose Angel Acosta appeals his guilty-plea conviction and

sentence for being unlawfully present in the United States

following removal.   The district court enhanced Acosta’s sentence

based upon its finding that his prior California conviction for

unlawful sexual intercourse with a minor was a conviction for a

crime of violence under U.S.S.G. § 2L1.2(b)(1)(A)(ii).       Acosta

argues that the enhancement was improper because the statute

under which he was convicted sets the legal age for consent to

sexual activity at 18 years of age while the Model Penal Code and


     *
       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this opinion should not be published and is not precedent except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. 06-40512
                                 -2-

the majority of the states set the legal age of consent for

sexual activity at 16 years of age of younger.

     Acosta’s prior conviction was under CAL. PENAL CODE ANN.

§ 261.5(c).   Under a common sense approach, Acosta’s conviction

was for the enumerated offenses of statutory rape and sexual

abuse of a minor and, accordingly, a crime of violence under

§ 2L1.2(b)(1)(A)(ii).    See § 2L1.2, comment. (n.1(b)(iii));

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

cert. denied, 126 S. Ct. 253 (2005); see also United States v.

Hernandez-Castillo, 449 F.3d 1127, 1131 (10th Cir. 2006); United

States v. Vargas-Garnica, 332 F.3d 471, 474 & n.1 (7th Cir.

2003).

     Acosta’s constitutional challenge is foreclosed by

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

Although Acosta contends that Almendarez-Torres was incorrectly

decided and that a majority of the Supreme Court would overrule

Almendarez-Torres in light of Apprendi v. New Jersey, 530 U.S.

466 (2000), 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).   Acosta 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.
