United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT July 23, 2007
Charles R. Fulbruge III
Clerk
No. 06-41305
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
NOE RIVERA-GALVEZ,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. 1:06-CR-322-ALL
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Before JOLLY, DAVIS, and DeMOSS, Circuit Judges.
PER CURIAM:*
Noe Rivera-Galvez appeals the sentence imposed following his
guilty-plea conviction of being found in the United States
without permission after deportation, in violation of 8 U.S.C.
§ 1326(a) and (b). He argues that the district court erred by
imposing an enhancement under U.S.S.G. § 2L1.2(b)(1)(A)(ii)
(2005) based on the determination that his prior Maine conviction
of aggravated assault was a crime of violence. He also
challenges the constitutionality of § 1326(b)’s treatment of
prior felony and aggravated felony convictions as sentencing
*
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this opinion should not be published and is not precedent except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. 06-41305
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factors rather than elements of the offense that must be found by
a jury.
The offense level for illegal reentry is increased by 16
levels if the defendant has a prior conviction of a crime of
violence. § 2L1.2(b)(1)(A)(ii). A crime of violence is (1) any
specified enumerated offense, including “aggravated assault,” or
(2) “any offense under federal, state, or local law that has as
an element the use, attempted use, or threatened use of physical
force against the person of another.” § 2L1.2, comment.
(n.(1)(B)(iii)); see United States v. Velasco, 465 F.3d 633, 637
(5th Cir. 2006). This court reviews de novo whether the district
court properly applied § 2L1.2(b)(1)(A)(ii) for having committed
a crime of violence. United States v. Hernandez-Rodriguez, 467
F.3d 492, 493 (5th Cir. 2006), cert. denied, 127 S. Ct. 1350
(2007). Rivera argues that his prior offense is not a crime of
violence because it is not an enumerated offense and because it
does not have as an element the use, attempted use, or threatened
use of physical force against another person.
Because the enumerated offenses are not defined, this court
uses a “common sense approach,” giving the offense their
“generic, contemporary, meaning.” United States v. Fierro-Reyna,
466 F.3d 324, 327 (5th Cir. 2006) (internal quotation marks and
citation omitted). As Rivera argues, the relevant section of the
Maine aggravated assault statute criminalizes “recklessly”
causing bodily injury with a deadly weapon, while the Model Penal
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Code does not include the term “recklessly” in the subsection
that sets forth the offense of causing bodily injury to another
with a deadly weapon. See MODEL PENAL CODE § 211.1(2)(b); ME. REV.
STAT. ANN. tit. 17-A, § 208(1)(B).
However, in Mungia-Portillo, 484 F.3d 813, 816-17 (5th Cir.
2007), when analyzing the Tennessee aggravated assault statute,
this circuit held that “reckless aggravated assault” falls within
the enumerated offense of “aggravated assault.” The reasoning of
Mungia-Portillo is persuasive in light of the text of the Maine
statute under which Rivera was charged and convicted. Thus, as
set forth in Mungia-Portillo, the district court did not err when
it concluded that Rivera’s prior Maine conviction for aggravated
assault fit within the definition of the enumerated offense of
aggravated assault, and it did not err when it determined that
Rivera’s prior offense warranted a 16-level enhancement under
§ 2L1.2(b)(1)(A)(ii). Because Rivera’s prior offense qualifies
as a COV as the enumerated offense of aggravated assault, we need
not consider Rivera’s argument that his prior offense did not
have as an element the use, attempted use, or threatened use of
physical force against another person.
Additionally, Rivera’s constitutional challenge is
foreclosed by Almendarez-Torres v. United States, 523 U.S. 224,
235 (1998). Although he contends that Almendarez-Torres was
incorrectly decided and that a majority of the Supreme Court
would overrule Almendarez-Torres in light of Apprendi v. New
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Jersey, 530 U.S. 466 (2000), 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). Rivera 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.
The judgment of the district court is AFFIRMED.