* 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this opinion should not be published and is not precedent except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.

United States Court of Appeals

Fifth Circuit

FILED

January 4, 2007

Charles R. Fulbruge III

Clerk

UNITED STATES COURT OF APPEALS

FIFTH CIRCUIT

No. 06-40140

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

JOSE MIGUEL FIGUEROA-HERNANDEZ,

Defendant-Appellant.

_________________________________________________________________

Appeal from the United States District Court

for the Southern District of Texas

(1:05-CR-774-ALL)

_________________________________________________________________

Before DAVIS, BARKSDALE, and BENAVIDES, Circuit Judges.

PER CURIAM:*

Jose Miguel Figueroa-Hernandez appeals his guilty-plea

conviction and sentence for violating 8 U.S.C. § 1326(a) and (b) by

illegally reentering the United States after being deported

following an aggravated felony conviction. 

Figueroa claims the district court erred, under the advisory

Guidelines, by enhancing his sentence pursuant to

§ 2L1.2(b)(1)(A)(ii) based on its determination that his 1994
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conviction under TEX. PENAL CODE § 21.11(a) for indecency with a

child was a crime of violence. A review of the record shows that,

although Figueroa objected in district court to the enhancement, he

did so on grounds other than the following issue he raises here.

Therefore, we review only for plain error. E.g., United States v.

Cabral-Castillo, 35 F.3d 182, 188-89 (5th Cir.), cert. denied, 513

U.S. 1175 (1995). For plain error, Figueroa must show a clear or

obvious error affected his substantial rights. E.g., United States

v. Castillo, 386 F.3d 632, 636 (5th Cir.), cert. denied, 543 U.S.

1029 (2004). “If all three conditions are met, an appellant court

may then exercise its discretion to notice a forfeited error, but

only if ... the error seriously affects the fairness, integrity, or

public reputation of judicial proceedings.” United States v.

Cotton, 535 U.S. 625, 631 (2002) (internal quotations and citations

omitted). 

Guidelines § 2L1.2(b)(1)(A)(ii) provides for a 16-level

increase in a defendant’s base offense level if he was previously

deported after being convicted of a felony crime of violence. 

The accompanying Application Notes define a “crime of violence”

either as one of a list of enumerated offenses or as “any offense

under federal, state, or local law that has an element the use,

attempted use, or threatened use of physical force against the

person of another.” U.S.S.G. § 2L1.2, cmt. n.1(B)(iii) (2005).

The enumerated offenses include the “sexual abuse of a minor”.

Id.; see also United States v. Velazquez-Overa, 100 F.3d 418, 421-
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422 (5th Cir.), cert. denied, 520 U.S. 1133 (1997) (concluding

sexual abuse of a minor is “inherently violent” and is, therefore,

an enumerated “crime of violence”). Figueroa contends his

conviction under § 21.11(a) did not constitute “sexual abuse of a

minor” because, under that statute, a victim can be as old as a day

under seventeen and therefore would not fall under the generic,

contemporary meaning of the term “minor” as it is used in the vast

majority of statutes proscribing sexual activity with or against

persons below a certain age. 

United States v. Zavala-Sustaita, 214 F.3d 601 (5th Cir.),

cert. denied, 531 U.S. 982 (2000) is dispositive. It held the

victim of a § 21.11(a)(2) offense, “a child younger than 17 years,

is clearly a minor”. Id. at 604. (internal quotations omitted).

It further noted that a violation of § 21.11(a)(2) is “sexual abuse

of a minor” as that term is used in its “ordinary, contemporary,

[and] common meaning”. Id. Finally, although it is unclear under

which section of § 21.11 Figueroa was convicted both subsections

employ similar language. See § 21.11(a). Needless to say, there

was no clear or obvious error.

Figueroa 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. Figueroa’s constitutional challenge is

foreclosed by Almendarez-Torres v. United States, 523 U.S. 224, 235

(1998). Although he contends that Almendarez-Torres was
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incorrectly decided and that a majority of the Supreme Court would

now overrule Almendarez-Torres in the 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). Figueroa concedes this claim is

foreclosed by Almendarez-Torres and raises it here only to preserve

it for further review.

AFFIRMED