United States v. Rojas

265 F. App'x 336

Opinion

PER CURIAM: *

Guillermo Eugenio Rojas appeals his guilty-plea conviction and sentence for illegally reentering the United States following deportation, in violation of 8 U.S.C. § 1326. Rojas contends that the district court erred by imposing a 16-level enhancement under U.S.S.G. § 2L1.2(b)(l)(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 is more broadly defined than most other definitions of aggravated assault because it may be committed by threatening the victim with a weapon. The Texas statute, Tex. Penal Code § 22.02, is substantially similar to the generic, common sense definition of “aggravated assault” and thus qualifies as the enumerated offense of “aggravated assault” under the Guidelines. See United States v. Guillein-Alvarez, 489 F.3d 197, 199-201 (5th Cir.), cert. denied, Beltran-Garcia v. United States, — U.S. -, 128 S.Ct. 418, 169 L.Ed.2d 293 (2007).

Rojas also maintains that the “felony” and “aggravated felony” provisions of 8 U.S.C. § 1326(b)(1) and (b)(2) are unconstitutional in light of Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). 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), which held that 8 U.S.C. § 1326(b)(2) is a penalty provision and not a separate criminal offense. United States v. Pineda-Arrellano, 492 F.3d 624, 625 (5th Cir.2007), petition fon cert. filed, (Aug. 28, 2007) (No. 07-6202).

AFFIRMED.

* Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4.