                                                         United States Court of Appeals
                                                                  Fifth Circuit
                                                               F I L E D
                      REVISED SEPTEMBER 18, 2006
                                                             September 14, 2006
                 UNITED STATES COURT OF APPEALS
                      FOR THE FIFTH CIRCUIT                Charles R. Fulbruge III
                                                                   Clerk
                       _______________________

                             No. 05-50994
                           Summary Calendar
                       _______________________


                      UNITED STATES OF AMERICA,

                                                   Plaintiff-Appellee,

                                versus


                  JOSE LUIS ALVARADO-HERNANDEZ,

                                                  Defendant-Appellant.


          Appeal from the United States District Court
                for the Western District of Texas


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

PER CURIAM:

          Jose Luis Alvarado-Hernandez pleaded guilty to reentering

the United States illegally after deportation in violation of

8 U.S.C. § 1326(b).    Alvarado-Hernandez now appeals his sentence,

arguing that the district court erred in enhancing his sentence

because his prior sexual assault conviction did not constitute a

crime of violence.    Because his prior conviction meets a common-

sense definition of crime of violence, we AFFIRM.
                             I.    Background



             Alvarado-Hernandez     pleaded         guilty       to   reentering   the

United States illegally after deportation.              At his sentencing, the

district court rejected Alvarado-Hernandez’s argument that a prior

Texas conviction     for   consensual         sex   with     a    person    less   than

seventeen-years-old under TEX. PENAL CODE § 22.011(a)(2) was not a

crime   of   violence   within     the       meaning   of        U.S.S.G.   §   2L1.2.

Consequently, the district court increased Alvarado-Hernandez’s

base-offense level by sixteen levels and sentenced him to forty-six

to fifty-seven months imprisonment.             He now appeals.

                             II.    Discussion

             The Sentencing Guidelines provide for a sixteen-level

upward adjustment for an illegal-entry defendant with a prior

conviction for a crime of violence. U.S.S.G. § 2L1.2(b)(1)(A)(ii).

An offense qualifies as a crime of violence if it includes an

element of force or constitutes an enumerated offense.                       Id. cmt.

(n.1(B)(iii)).     Included among the enumerated offenses are the

crimes of “statutory rape” and “sexual abuse of a minor.”                       Id.

             This court uses a “common sense approach” to determine if

the defendant’s offense qualifies as an enumerated offense in the

Guidelines.     United States v. Sanchez-Ruedas, 452 F.3d 409, 412

(5th Cir. 2006) (“common-sense approach” requires a determination

of the generic and contemporary meaning); see also United States v.


                                         2
Izaguirre-Flores, 405 F.3d 270, 274-75 (5th Cir. 2005).                We review

the district court’s interpretation de novo.                Id. at 272.

            The    Texas   statute    at     issue   meets     a   common   sense

definition of “statutory rape.”         This statute punishes consensual

sexual intercourse with a child, defined as a person younger than

the age of seventeen.           TEX. PENAL CODE §§ 22.011(a)(2), (c)(1).

Alvarado-Hernandez’s prior conviction was based on an indictment

that charged him with having consensual sexual intercourse with a

fourteen-year-old victim, sufficient to meet a common-sense                     as

well as a generic, contemporary definition of statutory rape.1                  See

United States v. Lopez-Garcia, 163 F.App’x 306, 307-08 (5th Cir.

2006) (unpublished).

            This   case    is   distinguishable      from    United    States    v.

Luciano-Rodriguez, 442 F.3d 320 (5th Cir. 2006), reh’g en banc

denied, 2006 WL 2235104 (5th Cir. Aug. 3, 2006), in which we held

that because TEX. PENAL CODE § 22.011(a)(1) defines sexual assault to

include those offenses where “assent is rendered a legal nullity by

the statute,”      a   conviction    under    subsection      (a)(1)   is   not a

forcible sex offense and thus not a crime of violence.                  Luciano-

Rodriguez involved a prior conviction under subsection (a)(1) of



      1
            Albeit under a different guideline provision, we have previously
characterized an offense under TEX. PENAL CODE § 22.011(a)(2) as statutory rape.
See United States v. Houston, 364 F.3d 243, 246-48 (5th Cir. 2004) (declining
crime of violence enhancement because guideline provision did not have the use
of force as an element and did not include statutory rape as an enumerated
offense) . Unlike the guideline provision in Houston, the provision at issue in
this case, § 2L1.2, specifically enumerates statutory rape as a crime of
violence.

                                       3
the   statute,     which    prohibits       intentional     or     knowing    sexual

penetration      “without   the   consent”      of   the    other    person.     By

contrast, this case involves a prior conviction under subsection

(a)(2), which prohibits intentional or knowing sexual penetration

regardless of consent. Luciano-Rodriguez controls only those cases

in which the defendant’s prior conviction was under subsection

(a)(1) because the victim’s consent is relevant only under that

subsection.      Moreover, the holding in Luciano-Rodriguez went only

to the issue whether an offense under subsection (a)(1) fit within

the enumerated offense of “forcible sex offenses.” The issue here,

however,    is   whether    Alvarado-Hernandez’s           prior    offense    under

subsection (a)(2) constitutes the enumerated offense of “statutory

rape.”

            Alvarado-Hernandez’s prior conviction under TEX. PENAL CODE

§§ 22.011(a)(2) was for a crime of violence.                       The defendant’s

attempt to draw distinctions between the Texas statute and the

Model Penal Code is without merit.2



      2
            We    also    reject   Alvarado-Hernandez’s     challenge   to    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 in light of Apprendi v. New Jersey, 530 U.S.
466, 120 S. Ct. 2348 (2000). Alvarado-Hernandez’s constitutional challenge is
foreclosed by Almendarez-Torres v. United States, 523 U.S. 224, 235, 118 S. Ct.
1219, 1226 (1998). Although Alvarado-Hernandez 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), cert. denied, 126 S. Ct. 298
(2005). Alvarado-Hernandez 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.

                                        4
         Therefore, we AFFIRM the sentence imposed by the district

court.

         AFFIRMED.




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