United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
June 11, 2007
FOR THE FIFTH CIRCUIT
_____________________ Charles R. Fulbruge III
Clerk
No. 06-40206
_____________________
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
OSWALDO PEREIRA-CARBALLO,
Defendant - Appellant.
_________________________________________________________________
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 5:05-CR-896-ALL
_________________________________________________________________
Before JOLLY, STEWART, and CLEMENT, Circuit Judges.
PER CURIAM:*
Oswaldo Pereira-Carballo (Pereira) pled guilty to a single-
count indictment charging that he illegally entered the United
States after having been deported. The presentence report (PSR)
recommended that Pereira’s offense level be increased by 16 levels
based upon Pereira’s 2002 conviction for assault with a dangerous
weapon in the District of Columbia. According to the indictment
Pereira “assaulted Wilmer Ruiz with a dangerous weapon, that is, a
machete.” The district court agreed, noting that Pereira’s prior
offense was “labeled very clearly in the official charging papers
*
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this opinion should not be published and is not precedent except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.
as an assault with a dangerous weapon,” and sentenced Pereira to 57
months of imprisonment.
Pereira argues that his assault with a dangerous weapon
conviction in the District of Columbia does not qualify as a crime
of violence because it “can be committed in ways that do not
involve the attempt to cause or the causation of any type of bodily
injury.” This argument is frivolous. Under our precedent, the
generic contemporary meaning of aggravated assault does not require
that the defendant have caused or intended to cause bodily injury.
See United States v. Sanchez-Ruedas, 452 F.3d 409, 413-14 (2006);
United States v. Saucedo-Roman, 202 Fed. Appx. 723, 724 (5th Cir.
2006) (unpublished). We therefore find that the district court did
not err in concluding that Pereira’s prior offense is a crime of
violence.
Pereira also argues that the “felony” and “aggravated felony”
provisions of § 1326(b)(1) and (2) are unconstitutional facially
and as applied to this case. He acknowledges however, that this
argument is foreclosed by Almendarez-Torres v. United States, 523
U.S. 224, 235 (1998), but raises it to preserve the challenge for
further review.
The judgment of the district court is
AFFIRMED.
2