Victor Lopez-Garcia appeals the sentence imposed after his plea of guilty to reentering the United States illegally after deportation. His sentence was enhanced due to a prior California conviction of unlawful sexual intercourse with a minor, in violation of Cal.Penal Code Ann. § 261.5. Lopez-Garcia contends that the prior offense of conviction was neither a felony nor a crime of violence under U.S.S.G. § 2L1.2.

The now-advisory federal sentencing guidelines define felony as “any federal, state, or local offense punishable by imprisonment for a term exceeding one year.” U.S.S.G. § 2L1.2, comment, (n.2). Section 261.5(c) of the California Penal Code provides that a violation may be either misdemeanor or a felony punishable by imprisonment for an unspecified term. CalPenal Code Ann. § 261.5(c). The record shows that Lopez-Garcia faced up to three years of imprisonment and that he failed to get the offense reduced to a misdemeanor. He was thus convicted of a felony.

Lopez-Garcia contends also.-that his prior offense does not fall within the generic definitions of “statutory rape” or “sexual abuse of a minor” under the comments to U.S.S.G. § 2L1.2. Our review of the prior offense may include reference to the charging papers. See United States v. Calderon-Pena, 383 F.3d 254, 258 & n. 5 (5th Cir. 2004), cert. denied, 543 U.S. 1076, 125 S.Ct. 932, 160 L.Ed.2d 817 (2005). Lopez-Garcia’s charging instrument alleged sexual intercourse with a minor who was not Lopez’s spouse and who was more *308 than three years younger than Lopez. Under a “common sense” approach, such an offense is “statutory rape” as listed under the comment to U.S.S.G. § 2L1.2. See United States v. Izaguirre-Flores, 405 F.3d 270, 275 (5th Cir. 2005); see also In re Jennings, 34 Cal.4th 254, 17 Cal.Rptr.3d 645, 95 P.3d 906, 921 (2004) (noting that statutory rape is now called unlawful sexual activity with a minor under CalPenal Code Ann. § 261.5). The offense also meets the common-sense definition of “sexual abuse of a minor.” See Izaguirre-Flores, 405 F.3d at 275-76 (similar North Carolina crime); United States v. Zavala-Sustaita, 214 F.3d 601, 607 (5th Cir. 2000) (similar Texas crime). Lopez-Gareia’s pri- or conviction was for a “crime of violence.”

For the first time on appeal, Lopez-Garcia argues that the district court erred by imposing his sentence under a mandatory sentencing guidelines scheme, citing United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 756, 160 L.Ed.2d 621 (2005). Lopez-Garcia arguably waived this issue in his plea agreement when he waived the right to have facts essential to punishment charged in the indictment or proved to a jury and when he agreed to be sentenced under the federal sentencing guidelines. We need not address the waiver, however, because Lopez-Garcia’s Booker claim fails under the applicable plain-error standard of review. See United States v. Valenzuela-Quevedo, 407 F.3d 728, 732-33 (5th Cir.) (plain error), cert. denied, — U.S. -, 126 S.Ct. 267, 163 L.Ed.2d 240 (2005).

Although sentencing Lopez-Garcia under a mandatory guidelines scheme constituted error in light of Booker, his claim fails because there is no showing that the district court would have imposed a lesser sentence under advisory guidelines. See id. at 733; United States v. Mares, 402 F.3d 511, 517-18, 521 (5th Cir.), cert. denied, — U.S. -, 126 S.Ct. 43, 163 L.Ed.2d 76 (2005). In addition, Lopez-Garcia’s argument that the error is structural and presumptively prejudicial is without merit. See United States v. Martinez-Lugo, 411 F.3d 597, 601 (5th Cir.), cert. denied, — U.S. -, 126 S.Ct. 464, 163 L.Ed.2d 352 (2005).

Lopez-Garcia next argues that the felony and aggravated felony provisions of 8 U.S.C. § 1326(b) are unconstitutional under Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). He concedes that his argument is foreclosed by Almendarez-Torres v. United States, 523 U.S. 224, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998), but he posits that Apprendi casts doubt on the continuing validity of Almendarez-Torres. Apprendi did not overrule Almendarez-Torres. See Apprendi 530 U.S. at 489-90; United States v. Dabeit, 231 F.3d 979, 984 (5th Cir. 2000). This court must follow Almendarez-Torres “unless and until the Supreme Court itself determines to overrule it.” Dabeit, 231 F.3d at 984 (quotation marks omitted).

The district court’s judgment is AFFIRMED.