          IN THE UNITED STATES COURT OF APPEALS
                   FOR THE FIFTH CIRCUIT United States Court of Appeals
                                                  Fifth Circuit

                                                                  FILED
                                                                February 12, 2008
                                No. 07-40561
                              Summary Calendar               Charles R. Fulbruge III
                                                                     Clerk

UNITED STATES OF AMERICA

                                           Plaintiff-Appellee

v.

ABELINO LOPEZ-CORTEZ

                                           Defendant-Appellant


                 Appeal from the United States District Court
                      for the Southern District of Texas
                          USDC No. 7:07-CR-87-ALL


Before WIENER, GARZA, and BENAVIDES, Circuit Judges.
PER CURIAM:*
      Defendant-Appellant Abelino Lopez-Cortez appeals his conviction and
sentence following his guilty plea to illegal reentry after deportation following
a conviction for an aggravated felony, in violation of 8 U.S.C. § 1326. Lopez-
Cortez argues that the district court erred by enhancing his sentence pursuant
to U.S.S.G. § 2L1.2(b)(1)(A)(ii) based on the determination that his 1991
conviction for indecency with a child under TEX. PENAL CODE § 21.11(a)(1) was
a crime of violence.

      *
      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should not be published and is not precedent except under the limited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. 07-40561

      Sexual abuse of a minor is an enumerated offense which qualifies as a
crime of violence under § 2L1.2(b)(1)(A)(ii). United States v. Zavala-Sustaita,
214 F.3d 601, 604-05 (5th Cir. 2000), held that a violation of § 21.11(a) is sexual
abuse of a minor as that term is used in its “ordinary, contemporary, [and]
common meaning.” As such, the district court did not clearly err in applying the
enhancement under § 2L1.2(b)(1)(A)(ii). See United States v. Villanueva, 408
F.3d 193, 202-03 & n.9 (5th Cir. 2005).
      In light of Apprendi v. New Jersey, 530 U.S. 466 (2000), Lopez-Cortez
challenges the constitutionality of § 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.          This argument is foreclosed by
Almendarez-Torres v. United States, 523 U.S. 224, 235 (1995). United States v.
Pineda-Arrellano, 492 F.3d 624, 625 (5th Cir. 2007), cert. denied, 2008 WL 59441
(Jan. 7, 2008) (No. 07-6202). Accordingly, the judgment of the district court is
AFFIRMED.




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