USA v. Hernandez-Ignacio

Filing 920071017

Opinion

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

FILED
No. 06-40718 Summary Calendar
October 17, 2007 Charles R. Fulbruge III Clerk

UNITED STATES OF AMERICA , Plaintiff-Appellee, v. GABRIEL HERNANDEZ-IGNACIO, Defendant-Appellant.

Appeal from the United States District Court for the Southern District of Texas No. 7:05-CR-1119

Before REAVLEY, SMITH, and BARKSDALE, Circuit Judges. PER CURIAM:*

Gabriel Hernandez-Ignacio pleaded guilty of being present illegally in the United States after deportation and was sentenced to 57 months in prison and 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
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No. 06-40718 two years of supervised release. For the first time on appeal, Hernandez-Ignacio argues that the 16-level crime-of-violence increase under U.S.S.G. § 2L1.2(b)(1)(A)(ii) is erroneous because his Texas conviction of aggravated assault does not qualify as a crime of violence under either definition applicable to that provision. In United States v. Guillen-Alvarez, 489 F.3d 197, 199-201 (5th Cir. 2007), cert. denied, 2007 WL 2590919 (U.S. Oct. 9, 2007) (No. 07-6315), this court held that aggravated assault under TEX. PENAL CODE § 22.02(a) qualifies as a conviction for an enumerated offense of aggravated assault and a crime of violence under § 2L1.2(b)(1)(A)(ii). The 16-level crime-of-violence increase under that subsection was not imposed in error, plain or otherwise. See United States v. Mares, 402 F.3d 511, 520 (5th Cir. 2005). In light of Apprendi v. New Jersey, 530 U.S. 466 (2000), Hernandez-Ignacio 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 court has held that this issue is "fully foreclosed from further debate." United States v. Pineda-Arrellano, 492 F.3d 624, 625 (5th Cir. 2007), petition for cert. filed (Aug. 28, 2007) (No. 07-6202). AFFIRMED.

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