Opinion
No. 07-40214 Summary Calendar.
February 13, 2008.
James Lee Turner, Assistant U.S. Attorney, U.S. Attorney's Office, Southern District of Texas, Houston, TX, for Plaintiff-Appellee.
Marjorie A. Meyers, Federal Public Defender, Federal Public Defender's Office, Southern District of Texas, Houston, TX, for Defendant-Appellant.
Appeal from the United States District Court for the Southern District of Texas, USDC No. 7:06-CR-986-1.
Before HIGGINBOTHAM, STEWART, and OWEN, Circuit Judges.
Gonzalo Briones-Zapata appeals his guilty-plea conviction and sentence for illegal reentry into the United States after having been deported. Briones-Zapata contends that the district court erred by imposing a 16-level enhancement under U.S.S.G. § 2L1.2(b)(1)(A)(ii) because his prior Texas conviction for aggravated assault is not a crime of violence under the Sentencing Guidelines. He contends that the Texas crime of aggravated assault has a broader definition than most other definitions of aggravated assault because it may be committed by threatening the victim with a weapon.
This court has previously held that aggravated assault under Texas Penal Code § 22.02 (Vernon 2000), which is identical to the 2006 version of the statute at issue in the instant case, is substantially similar to the generic, common sense definition of "aggravated assault" and therefore qualifies as the enumerated offense of "aggravated assault" under the Guidelines. See United States v. Guillen-Alvarez, 489 F.3d 197, 199-201 (5th Cir.), cert. denied, ___ U.S. ___, 128 S.Ct. 418, 169 L.Ed.2d 293 (2007); see also United States v. Rojas-Gutierrez, 510 F.3d 545 (5th Cir. 2007); United States v. Galves, 262 Fed.Appx. 587 (5th Cir. 2007) (unpublished); United States v. Quintanilla-Garay, 254 Fed. Appx. 425 (5th Cir. 2007) (unpublished); United States v. Delgado-Salazar, 252 Fed.Appx. 596 (5th Cir. 2007) (unpublished).
In light of Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), Briones-Zapata 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. This argument is foreclosed by Almendarez-Torres v. United States, 523 U.S. 224, 235, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998). United States v. Pineda-Arrellano, 492 F.3d 624, 625-26 (5th Cir. 2007), cert. denied, ___ U.S. ___, 128 S.Ct. 872, 169 L.Ed.2d 737 (2008).
The judgment of the district court is AFFIRMED.