United States Court of Appeals Fifth Circuit F I L E D IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT March 1, 2006

Charles R. Fulbruge III Clerk No. 05-50318 Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

JESSICA GARCIA-AGUIRRE,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Western District of Texas (2:04-CR-639-ALL) --------------------

Before KING, WIENER, and DeMOSS, Circuit Judges.

PER CURIAM:*

Defendant-Appellant Jessica Garcia-Aguirre (Garcia) appeals

her guilty-plea conviction and sentence for being unlawfully

present in the United States following deportation. Garcia asserts

that the district court erred in enhancing her sentence under

U.S.S.G. § 2L1.2(b)(1)(A)(ii) based on a Texas prior conviction for

aggravated robbery. As Garcia did not raise this issue in the

district court, review is limited to plain error. United States v.

Calverley,

(5th Cir. 1994) (en banc).

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. Under § 2L1.2(b)(1)(A)(ii), a defendant’s base offense level

is increased by 16 levels if he was previously deported after being

convicted of a crime of violence. Robbery is an offense expressly

listed as a crime of violence in the application notes to

§ 2L1.2. § 2L1.2, comment. (n.1(B)(iii)). A prior conviction will

qualify as a crime of violence if it is specifically identified in

the commentary definition, regardless whether it has the use of

force as an element. United States v. Izaguirre-Flores,

(5th Cir.), cert. denied,

(2005). We

use a “common sense approach” to determine whether a defendant’s

offense qualifies as an offense identified in § 2L1.2, comment.

(n.1(B)(iii)). Id.

Garcia has not shown that the district court’s increase in her

offense level pursuant to § 2L1.2 based on her prior Texas

conviction for aggravated robbery was a “clear or obvious” error.

See Izaguirre-Flores,

; see also United States v.

Calderon-Pena,

, 261 n.11 (5th Cir. 2004) (en banc).

Garcia also contends that

(b) is

unconstitutional. She acknowledges that this argument is

foreclosed by Almendarez-Torres,

(1998), but

raises it to preserve it for further review. We have “repeatedly

rejected arguments like the one made by [Garcia] and . . . held

that Almendarez-Torres remains binding despite Apprendi[ v. New

Jersey,

(2000).]” United States v. Garza-Lopez, 410

, 276 (5th Cir.), cert. denied,

(2005).

Garcia’s guilty-plea conviction and the sentence imposed are

AFFIRMED.

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