                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                   July 23, 2007

                                                          Charles R. Fulbruge III
                                                                  Clerk
                           No. 06-41305
                         Summary Calendar


UNITED STATES OF AMERICA,

                                    Plaintiff-Appellee,

versus

NOE RIVERA-GALVEZ,

                                    Defendant-Appellant.

                      --------------------
          Appeal from the United States District Court
               for the Southern District of Texas
                    USDC No. 1:06-CR-322-ALL
                      --------------------

Before JOLLY, DAVIS, and DeMOSS, Circuit Judges.

PER CURIAM:*

     Noe Rivera-Galvez appeals the sentence imposed following his

guilty-plea conviction of being found in the United States

without permission after deportation, in violation of 8 U.S.C.

§ 1326(a) and (b).   He argues that the district court erred by

imposing an enhancement under U.S.S.G. § 2L1.2(b)(1)(A)(ii)

(2005) based on the determination that his prior Maine conviction

of aggravated assault was a crime of violence.   He also

challenges the constitutionality of § 1326(b)’s treatment of

prior felony and aggravated felony convictions as sentencing

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this opinion should not be published and is not precedent except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

factors rather than elements of the offense that must be found by

a jury.

     The offense level for illegal reentry is increased by 16

levels if the defendant has a prior conviction of a crime of

violence.   § 2L1.2(b)(1)(A)(ii).   A crime of violence is (1) any

specified enumerated offense, including “aggravated assault,” or

(2) “any offense under federal, state, or local law that has as

an element the use, attempted use, or threatened use of physical

force against the person of another.”     § 2L1.2, comment.

(n.(1)(B)(iii)); see United States v. Velasco, 465 F.3d 633, 637

(5th Cir. 2006).   This court reviews de novo whether the district

court properly applied § 2L1.2(b)(1)(A)(ii) for having committed

a crime of violence.   United States v. Hernandez-Rodriguez, 467

F.3d 492, 493 (5th Cir. 2006), cert. denied, 127 S. Ct. 1350

(2007).   Rivera argues that his prior offense is not a crime of

violence because it is not an enumerated offense and because it

does not have as an element the use, attempted use, or threatened

use of physical force against another person.

     Because the enumerated offenses are not defined, this court

uses a “common sense approach,” giving the offense their

“generic, contemporary, meaning.”    United States v. Fierro-Reyna,

466 F.3d 324, 327 (5th Cir. 2006) (internal quotation marks and

citation omitted).   As Rivera argues, the relevant section of the

Maine aggravated assault statute criminalizes “recklessly”

causing bodily injury with a deadly weapon, while the Model Penal
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                                -3-

Code does not include the term “recklessly” in the subsection

that sets forth the offense of causing bodily injury to another

with a deadly weapon.   See MODEL PENAL CODE § 211.1(2)(b); ME. REV.

STAT. ANN. tit. 17-A, § 208(1)(B).

     However, in Mungia-Portillo, 484 F.3d 813, 816-17 (5th Cir.

2007), when analyzing the Tennessee aggravated assault statute,

this circuit held that “reckless aggravated assault” falls within

the enumerated offense of “aggravated assault.”     The reasoning of

Mungia-Portillo is persuasive in light of the text of the Maine

statute under which Rivera was charged and convicted.     Thus, as

set forth in Mungia-Portillo, the district court did not err when

it concluded that Rivera’s prior Maine conviction for aggravated

assault fit within the definition of the enumerated offense of

aggravated assault, and it did not err when it determined that

Rivera’s prior offense warranted a 16-level enhancement under

§ 2L1.2(b)(1)(A)(ii).   Because Rivera’s prior offense qualifies

as a COV as the enumerated offense of aggravated assault, we need

not consider Rivera’s argument that his prior offense did not

have as an element the use, attempted use, or threatened use of

physical force against another person.

     Additionally, Rivera’s constitutional challenge 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 v. New
                          No. 06-41305
                               -4-

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).   Rivera 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.
