United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT May 17, 2007
Charles R. Fulbruge III
Clerk
No. 05-41165
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ALEJANDRO GONZALEZ-FLORES,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. 1:05-CR-147-ALL
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Before DAVIS, BARKSDALE and BENAVIDES, Circuit Judges.
PER CURIAM:*
Alejandro Gonzalez-Flores (Gonzalez) appeals his guilty plea
conviction and sentence for illegal reentry. He argues that his
Georgia aggravated assault conviction did not constitute a “crime
of violence” under U.S.S.G. § 2L1.2(b)(1)(A)(ii) and that the
felony and aggravated felony provisions of 8 U.S.C. § 1326(b)(1),
(2) are unconstitutional in light of Apprendi v. New Jersey, 530
U.S. 466 (2000).
*
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this opinion should not be published and is not precedent except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. 05-41165
-2-
Using a “common sense approach,” we hold that the generic,
contemporary meaning of the offense of aggravated assault
includes the intentionally-caused apprehension of injury, 2
W.R. LaFave & A. Scott, Substantive Criminal Law, § 16.3 (2d ed.
2005), and that Gonzalez’s Georgia offense falls within that
generic, contemporary meaning. United States v. Santiesteban-
Hernandez, 469 F.3d 376, 378-79 (5th Cir. 2006); United States v.
Sanchez-Ruedas, 452 F.3d 409, 411, 414 (5th Cir.), cert. denied,
127 S. Ct. 315 (2006). We therefore hold that the crime-of-
violence enhancement was warranted.
Gonzalez’s constitutional challenge is foreclosed by
Almendarez-Torres v. United States, 523 U.S. 224, 235 (1998).
Although Gonzalez contends that Almendarez-Torres was incorrectly
decided and that a majority of the Supreme Court would overrule
Almendarez-Torres in light of Apprendi, we have repeatedly
rejected such arguments on the basis that Almendarez-Torres
remains binding. See United States v. Garza-Lopez, 410 F.3d 268,
276 (5th Cir.), cert. denied, 126 S. Ct. 298 (2005). Gonzalez
properly concedes that his argument is foreclosed in light of
Almendarez-Torres and circuit precedent, but he raises it here to
preserve it for further review.
AFFIRMED.