                                                         United States Court of Appeals
                                                                  Fifth Circuit
                                                               F I L E D
                 IN THE UNITED STATES COURT OF APPEALS
                         FOR THE FIFTH CIRCUIT                  April 12, 2007

                                                           Charles R. Fulbruge III
                                                                   Clerk
                             No. 06-40607
                           Summary Calendar


UNITED STATES OF AMERICA,

                                      Plaintiff-Appellee,

versus

RAUL FAVELA-MASUCA,

                                      Defendant-Appellant.

                       --------------------
          Appeal from the United States District Court
               for the Southern District of Texas
                    USDC No. 5:05-CR-2287-ALL
                       --------------------

Before KING, HIGGINBOTHAM, and GARZA, Circuit Judges.

PER CURIAM:*

     Raul Favela-Masuca appeals his conviction and sentence for

illegal reentry after having been deported, in violation of 8

U.S.C. § 1326.    Favela-Masuca contends the district court erred

by applying an eight-level increase to his offense level,

pursuant to U.S.S.G. § 2L1.2(b)(1)(C), because the conviction

that resulted in his deportation, misdemeanor serious domestic

abuse assault in violation of IOWA CODE ANN. §§ 236.2(2), 708.1 and

702.2A, is not a crime of violence under 18 U.S.C. § 16 and does



     *
       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this opinion should not be published and is not precedent except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. 06-40607
                                -2-

not constitute an aggravated felony under U.S.S.G. § 2L1.2(b)(1)(C).

     In United States v. Villegas-Hernandez, 468 F.3d 874 (5th

Cir. 2006), cert. denied, ___ S. Ct. ___, No. 06-9050, 2007 WL

205014 (Feb. 20, 2007), this court determined that an offense is

a crime of violence under § 2L1.2 only if the use of force was

both intentional and an element of the offense.

Villegas-Hernandez, 468 F.3d at 880-82. As the Government

concedes, the use of force is not an element of serious domestic

abuse assault under IOWA CODE ANN. §§ 236.2(2), 708.1 and 702.2A.

The district court thus erred in applying an enhancement based on

this offense.   Accordingly, the sentence is vacated, and this

matter remanded for resentencing in accordance with this opinion.

      Favela-Masuca also challenges the constitutionality of the

treatment of prior felony and aggravated felony convictions under

8 U.S.C. § 1326(b) as sentencing factors rather than elements of

the offense that must be found by a jury.   Favela-Masuca’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, 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).   Favela-Masuca properly concedes

that his argument is foreclosed in light of Almendarez-Torres and
                          No. 06-40607
                               -3-

circuit precedent, but he raises it here to preserve it for

further review.

     We deny as moot his motion to expedite the appeal.

      CONVICTION AFFIRMED; SENTENCE VACATED; REMANDED FOR
RESENTENCING; MOTION TO EXPEDITE THE APPEAL DENIED AS MOOT.
