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

                               No. 07-40104
                                                                F I L E D
                             Summary Calendar                  September 27, 2007

                                                           Charles R. Fulbruge III
                                                                   Clerk
UNITED STATES OF AMERICA

                                          Plaintiff-Appellee

v.

RAUL ANTONIO HERNANDEZ-HERNANDEZ, also known as Ricardo
Hernandez

                                          Defendant-Appellant


                Appeal from the United States District Court
                     for the Southern District of Texas
                        USDC No. 1:06-CR-780-ALL


Before JOLLY, DENNIS, and PRADO, Circuit Judges.

PER CURIAM:*
      Raul Antonio Hernandez-Hernandez (Hernandez) appeals following his
guilty plea to being an alien unlawfully found in the United States after
deportation subsequent to conviction for an aggravated felony, in violation of
8 U.S.C. § 1326. Hernandez argues that the district court erroneously construed
his prior conviction in Texas for aggravated assault as a crime of violence and
incorrectly applied a sentence enhancement under U.S.S.G. § 2L1.2. Hernandez

      *
      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should not be published and is not precedent except under the limited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. 07-40104

correctly concedes that because he did not raise this argument in the district
court our review is for plain error. See United States v. Gracia-Cantu, 302 F.3d
308, 310 (5th Cir. 2002). In light of our recent decision in United States v.
Guillen-Alvarez, __ F.3d __, 2007 WL 1615602 at *2-3 (5th Cir. June 6, 2007),
Hernandez’s argument is unavailing.
      Hernandez also 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.         Hernandez’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 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.
2005). Hernandez 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.
      Accordingly, the judgment of the district court is AFFIRMED.




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