                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                  June 19, 2007

                                                          Charles R. Fulbruge III
                                                                  Clerk
                            No. 06-40165
                        Conference Calendar


UNITED STATES OF AMERICA,

                                    Plaintiff-Appellee,

versus

JORGE MIGUEL ANGEL-CRUZ, also known as Jorge Miguel Angel Cruz-
Benitez,

                                    Defendant-Appellant.

                      --------------------
          Appeal from the United States District Court
               for the Southern District of Texas
                    USDC No. 7:05-CR-822-ALL
                      --------------------

Before JONES, Chief Judge, and JOLLY and DENNIS, Circuit Judges.

PER CURIAM:*

     Jorge Miguel Angel-Cruz (Angel) appeals the 37-month prison

term imposed following his guilty-plea conviction of being

illegally present in the United States following deportation, in

violation of 8 U.S.C. § 1326(a) and (b).   Angel argues that his

prior Florida offenses of aggravated battery and aggravated

assault are not crimes of violence and therefore the district

court erred when it enhanced his offense level under U.S.S.G.

§ 2L1.2(b)(1)(A)(ii).   He also argues that the felony and


     *
       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this opinion should not be published and is not precedent except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. 06-40165
                                -2-

aggravated felony provisions of § 1326(b) are unconstitutional in

light of Apprendi v. New Jersey, 530 U.S. 466 (2000), and

subsequent Supreme Court decisions.

     In United States v. Dominguez, 479 F.3d 345, 347-49 (5th

Cir. 2007), this court considered and rejected arguments similar

to those presented by Angel regarding his aggravated battery

conviction.   As in Dominguez, 479 F.3d at 348-49, Angel’s

aggravated battery conviction is a crime of violence because it

had as an element at least a threatened use of force.   The

district court therefore did not err when it increased Angel’s

offense level 16-levels pursuant to § 2L1.2(b)(1)(A)(ii).     As the

district court properly determined that Angel’s aggravated

battery conviction is a crime of violence, we need not consider

whether Angel’s aggravated assault conviction is a crime of

violence.

     Angel’s constitutional challenge to § 1326(b) is foreclosed

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

Although Angel 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).   Angel 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.
                     No. 06-40165
                          -3-

The district court’s judgment is AFFIRMED.
