IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT United States Court of Appeals Fifth Circuit

FILED October 20, 2009 No. 09-40550 Conference Calendar Charles R. Fulbruge III Clerk

UNITED STATES OF AMERICA,

Plaintiff-Appellee v.

JOSUE ROGEL-TORRES,

Defendant-Appellant

Appeal from the United States District Court for the Southern District of Texas USDC No. 2:09-CR-20-1

Before WIENER, BENAVIDES, and STEWART, Circuit Judges. PER CURIAM:* Appealing the judgment in a criminal case, Josue Rogel-Torres presents arguments that he concedes are foreclosed by United States v. Ayala,

(5th Cir. 2008), cert. denied,

(2009), which held that a violation of T EXAS P ENAL C ODE § 21.11(a) constitutes the offense of sexual abuse of a minor, justifying a U.S.S.G. § 2L1.2(b)(1)(A)(ii) offense level increase. The appellant’s unopposed motion for summary disposition is GRANTED, and the judgment of the district court is AFFIRMED.

* Pursuant to 5 TH C IR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5 TH C IR. R. 47.5.4.