                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                  April 13, 2007

                                                         Charles R. Fulbruge III
                                                                 Clerk
                             No. 06-41306
                           Summary Calendar


UNITED STATES OF AMERICA,

                                     Plaintiff-Appellee,

versus

LAZARO RAMIREZ-CASTRO,
                                     Defendant-Appellant.

                      --------------------
          Appeal from the United States District Court
               for the Southern District of Texas
                    USDC No. 1:06-CR-347-ALL
                      --------------------

Before REAVLEY, WIENER and DENNIS, Circuit Judges.

PER CURIAM:*

     Lazaro Ramirez-Castro was convicted after pleading guilty to

illegal reentry following a prior deportation after a conviction

of an aggravated felony.    He now appeals that conviction and his

46-month sentence.

     Ramirez-Castro argues that his previous Florida conviction

of aggravated battery with a deadly weapon is not a crime of

violence because it is not an offense enumerated under U.S.S.G.

§ 2L1.2 comment. (n.1(B)(iii) and it does not have as an element




     *
       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this opinion should not be published and is not precedent except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. 06-41306
                                -2-

the use, attempted use, or threatened use of physical force

against the person of another.   Ramirez-Castro’s conviction for

aggravated battery using a deadly weapon under FLA. STAT. ANN.

§ 784.045(1)(a)(2) “has as an element at least a threatened use

of force” and thus was properly characterized by the district

court as a crime of violence.    See United States v. Dominguez,

___ F.3d ___, 2007 WL 441885, at *1-4 (5th Cir. 2007).

     Ramirez-Castro also challenges the constitutionality of

8 U.S.C. § 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.   Ramirez-Castro’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 v. New Jersey, 530 U.S. 466 (2000), 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).   Ramirez-Castro 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.
