                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                February 21, 2006

                                                          Charles R. Fulbruge III
                                                                  Clerk
                           No. 05-40490
                         Summary Calendar



UNITED STATES OF AMERICA,

                                    Plaintiff-Appellee,

versus

JOSE GUADALUPE GARCIA-GONZALEZ,

                                    Defendant-Appellant.

                       --------------------
          Appeal from the United States District Court
               for the Southern District of Texas
                    USDC No. 7:04-CR-1064-ALL
                       --------------------

Before SMITH, GARZA, and PRADO, Circuit Judges.

PER CURIAM:*

     Jose Guadalupe Garcia-Gonzalez appeals his guilty-plea

conviction and sentence for being unlawfully present in the

United States after deportation without consent of the Attorney

General or the Secretary of Homeland Security.    He argues that

the district court erred in enhancing his sentence based on his

Texas prior conviction for kidnapping under U.S.S.G. § 2L1.2.

Because he did not raise this issue in the district court, review

is limited to plain error.   See United States v. Garcia-Mendez,


     *
       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this opinion should not be published and is not precedent except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. 05-40490
                                  -2-

420 F.3d 454, 456 (5th Cir. 2005).    Under § 2L1.2(b)(1)(A)(ii), a

defendant’s base offense level is increased by 16 levels if he

was previously deported after being convicted of a crime of

violence.   Kidnapping is one of the enumerated offenses listed in

the application notes to § 2L1.2 as a crime of violence.

§ 2L1.2, comment. (n.1(B)(iii)).    A prior conviction will qualify

as a crime of violence if it is specifically enumerated in the

commentary definition, regardless of whether it has the use of

force as an element.     United States v. Izaguirre-Flores, 405 F.3d

270, 273-75 (5th Cir.), cert. denied, 126 S. Ct. 253 (2005).     We

use a “common sense approach” to determine whether a defendant’s

offense qualifies as an offense enumerated in § 2L1.2, comment.

(n.1(B)(iii)).   Id.

     Garcia-Gonzalez has not shown that the district court’s

increase in his offense level based on his prior Texas kidnapping

conviction pursuant to § 2L1.2 was a “clear or obvious” error.

Under Texas law, a person commits the offense of kidnapping if he

“intentionally or knowingly abducts another person.”    TEX. PENAL

CODE § 20.03(a)(2005).    The elements of the Texas kidnapping

offense are consistent with the ordinary, contemporary, and

common understanding of the term as defined by Black’s Law

Dictionary.   The district court’s determination that Garcia-

Gonzalez’s offense level should be increased based on his prior

kidnapping offense under § 2L1.2 was not a “clear or obvious”
                           No. 05-40490
                                -3-

error.   See Izaguirre-Flores, 405 F.3d at 273-75; Garcia-Mendez,

420 F.3d at 456.

     Garcia-Gonzalez argues that 8 U.S.C. § 1326(b) is

unconstitutional.   He acknowledges that this argument is

foreclosed by Almendarez-Torres, 523 U.S. 224, 235 (1998), but

raises the argument to preserve it for further review.    We have

“repeatedly rejected arguments like the one made by [Garcia-

Gonzalez] and . . . held that Almendarez-Torres remains binding

despite Apprendi[ v. New Jersey, 530 U.S. 466 (2000).]”     United

States v. Garza-Lopez, 410 F.3d 268, 276 (5th Cir.), cert.

denied, 126 S. Ct. 298 (2005).

     AFFIRMED.
