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. 06-41256
_____________________
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
ANGELINO GARCIA-RAMIREZ,
Defendant - Appellant.
_________________________________________________________________
Appeal from the United States District Court
for the Southern District of Texas, Brownsville
USDC No. 1:06-CR-146-1
_________________________________________________________________
Before JOLLY, STEWART, and PRADO, Circuit Judges.
PER CURIAM:*
Angelino Garcia-Ramirez appeals his sentence for illegal
reentry. We AFFIRM.
I.
Garcia-Ramirez argues that the district court committed plain
error by imposing a sixteen-level “crime of violence” enhancement
under U.S.S.G. § 2L1.2(b)(1)(A)(ii) for his previous conviction of
aggravated assault in Texas. Because Garcia-Ramirez did not object
below, we review under the plain error standard. See United States
v. Villegas, 404 F.3d 355, 358 (5th Cir. 2005). “This court finds
*
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this opinion should not be published and is not precedent except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.
plain error when: (1) there was an error; (2) the error was clear
and obvious; and (3) the error affected the defendant’s substantial
rights.” Id. “If all three conditions are met an appellate court
may then exercise its discretion to notice a forfeited error but
only if (4) the error seriously affects the fairness, integrity, or
public reputation of judicial proceedings.” Id. at 358-59.
Prior to his illegal reentry for which he was sentenced,
Garcia-Ramirez was convicted in 2000 of aggravated assault upon
three victims. The aggravated assault indictment alleged that
Garcia-Ramirez “did then and there, intentionally or knowingly
threaten [each victim] with imminent bodily injury and did then and
there use or exhibit a deadly weapon, to-wit: a knife, during the
commission of said assault.” Given this language in the
indictment, it is clear that Garcia-Ramirez was convicted of
aggravated assault in violation of Texas Penal Code § 22.02, based
on the incorporated offense of assault as defined in Texas Penal
Code § 22.01(a)(2).
These facts are nearly identical to the facts in our recent
decision in United States v. Guillen-Alvarez, No. 05-41787, slip
op. (5th Cir. June 6, 2007). In Guillen-Alvarez, as in this case,
the defendant was previously convicted in 2000 of aggravated
assault with a deadly weapon, to wit: a knife, thus in violation of
Texas Penal Code § 22.02. See id. at *4. But there, unlike the
facts before us, the charging documents provided insufficient
details for us to determine the subsection of Texas Penal Code §
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22.01(a) defining the defendant’s incorporated offense of assault.
See id. Nevertheless, based on this Court’s holding in United
States v. Mungia-Portillo, No. 06-40273, 2007 WL 1127859 (5th Cir.
Apr. 17, 2007), we held that the defendant’s aggravated assault
conviction under Texas Penal Code § 22.02 constituted a crime of
violence, regardless of the subsection of Texas Penal Code §
22.01(a) defining the defendant’s incorporated offense of assault.
See id. at *7.
Here, Guillen-Alvarez is controlling and we find no plain
error. Garcia-Ramirez’s argument fails and his sentence must be
affirmed.
II.
Garcia-Ramirez argues that his sentence is unconstitutional
because it exceeds the statutory maximum sentence for violations of
8 U.S.C. § 1326(a). As this argument is foreclosed by
Almendarez-Torres v. United States, 523 U.S. 224, 239-47 (1998), it
fails.
III.
For the foregoing reasons, Garcia-Ramirez’s sentence is
AFFIRMED.
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