United States Court of Appeals
Fifth Circuit
F I L E D
UNITED STATES COURT OF APPEALS
For the Fifth Circuit March 16, 2005
Charles R. Fulbruge III
Clerk
No. 04-40313
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
VERSUS
FRANCISCO GOMEZ-PINEDA,
Defendant-Appellant.
Appeal from the United States District Court
For the Southern District of Texas
7:03-CR-896-1
Before DAVIS, SMITH and DeMOSS, Circuit Judges.
PER CURIAM:*
The only significant issue presented in this appeal is whether
the district court erred in finding that Gomez-Pineda’s prior South
Carolina conviction for Assault and Battery of a Highly Aggravated
Nature constitutes a “crime of violence” under § 2L1.2(b)(1)(A)(ii)
of the United States Sentencing Guidelines.1 The district court
*
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opinion should not be published and is not precedent except under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.
1
The district court sentenced Gomez-Pineda using the 2002 edition
of the Guidelines with the April 30, 2003, amendments; all
Guidelines sections and Commentary referenced herein refer to this
answered this question in the affirmative and enhanced Gomez-
Pineda’s offense level by 16 levels.
Gomez-Pineda did not object to the 16-level enhancement before
the district court, but contends on appeal that the district court
plainly erred in concluding that the South Carolina conviction
qualified as a “crime of violence” warranting the 16-level
enhancement.
We disagree. The explanatory definition in Part II of the
commentary to § 2.L1.2 lists a number of “enumerated offenses” that
qualify as “crimes of violence.” One of these enumerated offenses
is aggravated assault. Although the elements of this offense vary
from state to state, we conclude that the district court did not
plainly err in concluding that the South Carolina offense qualified
as the enumerated offense of aggravated assault.
Gomez-Pineda also contends that the provisions of 8 U.S.C. §
1326 (b)(1) and (2) which provide that a defendant may be sentenced
to 10 or 20 years imprisonment for a prior “felony” or “aggravated
felony” are unconstitutional in light of Apprendi v. New Jersey,
530 U.S. 446 (2000). As appellant recognizes, this issue is
controlled by Almendarez-Torres v. United States, 523 U.S. 224, 235
(1998), in which the Supreme Court rejected this argument.
AFFIRMED.
version.
2