                                                        United States Court of Appeals
                                                                 Fifth Circuit
                                                              F I L E D
                IN THE UNITED STATES COURT OF APPEALS
                        FOR THE FIFTH CIRCUIT                November 16, 2004

                                                           Charles R. Fulbruge III
                                                                   Clerk
                            No. 03-41526
                          Summary Calendar



UNITED STATES OF AMERICA,

                                     Plaintiff-Appellee,

versus

PAULINO BAUTISTA-SANCHEZ,

                                     Defendant-Appellant.

                         --------------------
            Appeal from the United States District Court
                 for the Southern District of Texas
                       USDC No. 6:02-CR-28-ALL
                         --------------------

Before JONES, BARKSDALE and PRADO, Circuit Judges.

PER CURIAM:*

     Paulino Bautista-Sanchez (Bautista) appeals the sentence

imposed following his guilty-plea conviction of being found in

the United States after deportation in violation of 8 U.S.C.

§ 1326.    He argues that his Texas felony conviction for indecency

with a child was not a “crime of violence” warranting the

16-level increase under United States Sentencing Guidelines

§ 2L1.2.   The Sentencing Guidelines provide for a 16-level

increase when the defendant has a prior felony conviction for a


     *
       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this opinion should not be published and is not precedent except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. 03-41526
                                 -2-

“crime of violence.”    U.S.S.G. § 2L1.2(b)(1)(A)(ii) (Nov. 2002).

A crime of violence is defined to include “sexual abuse of a

minor.”    Id. at comment. n.1(B)(ii)(II).   The Texas crime of

indecency with a child constitutes “sexual abuse of a minor.”

United States v. Zavala-Sustaita, 214 F.3d 601, 607 (5th Cir.

2000); United States v. Rayo-Valdez, 302 F.3d 314, 316 (5th

Cir.), cert. denied, 537 U.S. 1095 (2002).     Bautista’s 16-level

increase was warranted by his prior conviction for indecency with

a child.

     Bautista also contends that the district court erred at

sentencing by assigning him criminal history points for his prior

driving while intoxicated (DWI) conviction.     Bautista contests

his signed waiver of counsel and contends that his DWI conviction

was uncounseled and, thus, in violation of the Sixth Amendment.

After reviewing the briefs, the record, and applicable

authorities, we hold that there is no constitutional violation

because Bautista validly waived his right to counsel in

connection with his 2002 DWI conviction proceedings.     See Scott

v. Illinois, 440 U.S. 367, 373-74 (1979).     The district court did

not err in assessing criminal history points for Bautista’s prior

uncounseled misdemeanor DWI conviction.

     Bautista further asserts that the “aggravated felony”

provision of 8 U.S.C. § 1326(b)(2) is unconstitutional.     As

Bautista concedes, his argument is foreclosed by

Almendarez-Torres v. United States, 523 U.S. 224, 235 (1998), but
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                               -3-

he seeks to preserve the issue for possible Supreme Court review

in light of Apprendi v. New Jersey, 530 U.S. 466 (2000).        This

court must follow Almendarez-Torres “unless and until the Supreme

Court itself determines to overrule it.”     United States v.

Dabeit, 231 F.3d 979, 984 (5th Cir. 2000).

     Accordingly, the district court’s judgment of conviction and

sentence is AFFIRMED.
