United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT November 16, 2006
Charles R. Fulbruge III
Clerk
No. 05-40765
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
VICTOR TORRES-NAVA,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. 5:05-CR-31-ALL
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Before REAVLEY, GARZA and BENAVIDES, Circuit Judges.
PER CURIAM:*
Victor Torres-Nava (Torres) appeals the 48-month sentence he
received following his guilty-plea conviction for illegal
reentry, in violation of 8 U.S.C. § 1326. He argues that the
district court erred in assessing a 16-level sentencing
enhancement for his prior felony conviction for sexual assault of
a child under TEX. PENAL CODE § 22.011(a)(2) because the
conviction did not constitute a “crime of violence” within the
meaning of U.S.S.G. § 2L1.2(b)(1)(A).
The argument is without merit. A conviction under
*
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this opinion should not be published and is not precedent except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. 05-40765
-2-
§ 22.011(a)(2) “meets a common-sense as well as a generic,
contemporary definition of statutory rape,” and it is thus the
equivalent of an enumerated offense which triggers the
enhancement. United States v. Alvarado-Hernandez, ___ F.3d ___,
2006 WL 2621650 at **1-2 (5th Cir. Sept. 14, 2006).
Torres also 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. His 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 Jersy, 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). Torres 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.