                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                   May 25, 2007

                                                         Charles R. Fulbruge III
                                                                 Clerk
                             No. 06-41273
                           Summary Calendar


UNITED STATES OF AMERICA

                     Plaintiff - Appellee

     v.

GERMAN LANDEROS-REYES

                     Defendant - Appellant

                      --------------------
          Appeal from the United States District Court
               for the Southern District of Texas
                    USDC No. 5:06-CR-442-ALL
                      --------------------

Before KING, HIGGINBOTHAM, and GARZA, Circuit Judges.

PER CURIAM:*

     German Landeros-Reyes (Landeros) appeals from the 23-month

sentence imposed following his guilty plea conviction for illegal

reentry, in violation of 8 U.S.C. § 1326.     He argues for the

first time on appeal that § 1326(b) is unconstitutional in light

of Apprendi v. New Jersey, 530 U.S. 466 (2000).     He also argues

for the first time that his prior misdemeanor assault convictions

were not crimes of violence for purposes of enhancement under

U.S.S.G. § 2L1.2(b)(1)(E).



     *
       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this opinion should not be published and is not precedent except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. 06-41273
                                 -2-

     Landeros’s challenge to § 1326(b) is foreclosed by

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

Although Landeros 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. 2005).   Landeros 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.

     Landeros’s challenge to the district court’s guidelines

calculations is reviewed for plain error only.     See United States

v. Villegas, 404 F.3d 355, 358 (2005).     The four-level

enhancement under § 2L1.2(b)(1)(E) is appropriate where the

defendant has three or more misdemeanor convictions for crimes of

violence.   The district court relied on Landeros’s misdemeanor

convictions for assault under Texas law to justify the

enhancement.   Subsequent to sentencing, this court held that the

crime of misdemeanor assault under Texas law, even when committed

by causing bodily injury, is not a crime of violence under the

Guidelines.    See United States v. Villegas-Hernandez, 468 F.3d

874, 882 (5th Cir. 2006); United States v. Fierro-Reyna, 466 F.3d

324, 326 (5th Cir. 2006).   Therefore, as the Government concedes,

the district court plainly erred by applying the enhancement.
                           No. 06-41273
                                -3-

See United States v. Martinez-Vega, 471 F.3d 559, 561 (5th Cir.

2006).   Contrary to the Government’s view, this error affected

Landeros’s substantial rights and affected the fairness and

integrity of the judicial proceedings.    See Garza-Lopez, 410 F.3d

at 275; United States v. Gonzales, ____ F.3d ____ , No. 05-41221,

2007 WL 1063993 at *3 (5th Cir. Mar. 7, 2007).   Accordingly,

Landeros’s sentence is VACATED, and the case is REMANDED for

resentencing.
