                                                       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. 06-40237
                        Conference Calendar


UNITED STATES OF AMERICA,

                                    Plaintiff-Appellee,

versus

OSMIN ALEXANDER BARRERA, also known as Armando Guevara,

                                    Defendant-Appellant.

                       --------------------
          Appeal from the United States District Court
               for the Southern District of Texas
                      USDC No. 5:05-CR-1831
                       --------------------

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

PER CURIAM:*

     Osmin Alexander Barrera pleaded guilty to being illegally

present in the United States following deportation and was

sentenced to a 46-month term of imprisonment.   Barrera argues

that the district court erred by enhancing his offense level

based on its finding that Barrera’s prior Florida conviction for

aggravated battery was a crime of violence under U.S.S.G.

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

aggravated felony provisions of 8 U.S.C. § 1326(b) are



     *
       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this opinion should not be published and is not precedent except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. 06-40237
                                -2-

unconstitutional in light of Apprendi v. New Jersey, 530 U.S. 466

(2000), and subsequent Supreme Court decisions.

     The district court did not err by increasing Barrera’s

offense level pursuant to § 2L1.2(b)(1)(A)(ii) based on the

determination that a prior Florida aggravated battery conviction

was a crime of violence.   See United States v. Dominguez,

479 F.3d 345, 347-49 (5th Cir. 2007).     The sentence enhancement

was proper because Barrera’s prior conviction had as an element

at least a threatened use of force.     See id. at 348-49.

     Barrera’s constitutional challenge to § 1326(b) is

foreclosed by Almendarez-Torres v. United States, 523 U.S. 224,

235 (1998).   Although Barrera 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).    Barrera 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.

     AFFIRMED.
