USA v. Chavez-Sifuentes

Filing 920080219

Opinion

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

FILED
No. 07-40089 Summary Calendar
February 19, 2008 Charles R. Fulbruge III Clerk

UNITED STATES OF AMERICA Plaintiff-Appellee v. GILBERTO CHAVEZ-SIFUENTES Defendant-Appellant

Appeal from the United States District Court for the Southern District of Texas USDC No. 7:06-CR-683-1

Before GARWOOD, WIENER, and BARKSDALE, Circuit Judges. PER CURIAM:* Gilberto Chavez-Sifuentes appeals his guilty-plea conviction and sentence for being found in the United States following a prior deportation, in violation of 8 U.S.C. § 1326. Chavez-Sifuentes argues that the district court erred in 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
*

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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.

No. 07-40089 because it may be committed by threatening the victim with a weapon. The Texas statute, TEX. PENAL CODE ANN. § 22.02, is substantially similar to the definition of "aggravated assault" under the Model Penal Code and thus 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, 128 S. Ct. 418 (2007). In light of Apprendi v. New Jersey, 530 U.S. 466 (2000), Chavez-Sifuentes 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 (1998). United States v. Pineda-Arrellano, 492 F.3d 624, 625 (5th Cir. 2007), cert. denied, 128 S.Ct. 872 (Jan. 7, 2008) (No. 07-6202). The judgment of the district court is AFFIRMED.

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