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

                                                                            FILED
                                                                         February 8, 2008
                                     No. 07-50677
                                   Summary Calendar                   Charles R. Fulbruge III
                                                                              Clerk

UNITED STATES OF AMERICA

                                                  Plaintiff-Appellee

v.

LUIS ALBERTO VILLA-DELGADO

                                                  Defendant-Appellant


                   Appeal from the United States District Court
                        for the Western District of Texas
                          USDC No. 3:06-CR-2486-ALL


Before WIENER, GARZA, and BENAVIDES, Circuit Judges.
PER CURIAM:*
       Defendant-Appellant Luis Alberto Villa-Delgado appeals the 46-month
sentence imposed following his guilty-plea conviction for attempting to reenter
the United States illegally after having been removed. He contends that the
district court erred in ruling that his prior Idaho rape conviction constituted the
enumerated offense of statutory rape, triggering the 16-level enhancement
contained in U.S.S.G. § 2L1.2(b)(1)(A)(ii). He also contends that his sentence
exceeds the statutory maximum under 8 U.S.C. § 1326(a).


       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 07-50677

      As Villa preserved his Guidelines argument in the district court, we review
that court’s interpretation of the Guidelines de novo. United States v. Carbajal-
Diaz, 508 F.3d 804, 807 (5th Cir. 2007).      The Idaho statute of conviction
criminalizes sexual intercourse with a female younger than 18 years of age. The
charging document, to which Villa pleaded guilty, stated that the female victim
was 13 years of age. Thus, Villa’s crime may be narrowly defined as unlawful
sexual intercourse with a 13-year old female. See id. at 807-10. This crime is
encompassed within the generic, contemporary meaning of statutory rape.
Accordingly, application of the 16-level enhancement was proper. See id.
      Relying on Apprendi v. New Jersey, 530 U.S. 466 (2000), Villa 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. This challenge is foreclosed by Almendarez-Torres v.
United States, 523 U.S. 224, 235 (1995). United States v. Pineda-Arrellano, 492
F.3d 624, 625 (5th Cir. 2007), cert. denied, 2008 WL 59441 (Jan. 7, 2008) (No.
07-6202).
AFFIRMED.




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