United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
September 18, 2007
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
Clerk
No. 05-41302
Summary Calendar
UNITED STATES OF AMERICA
Plaintiff-Appellee
v.
RAMIRO MATA-ORTIZ
Defendant-Appellant
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 5:05-CR-459-ALL
Before JOLLY, DENNIS, and PRADO, Circuit Judges.
PER CURIAM:*
Ramiro Mata-Ortiz (Mata) appeals following his guilty plea to being
illegally present in the United States following a prior deportation, in violation
of 8 U.S.C. § 1326(b)(2). The district court increased Mata’s base offense level
by 16 levels pursuant to U.S.S.G. § 2L1.2(b)(1)(A) because it determined that
Mata’s prior conviction in Tennessee for reckless aggravated assault was a crime
of violence. Mata argues that the enhancement was improper because the
Tennessee offense is broader than the generic, contemporary meaning of
*
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should not be published and is not precedent except under the limited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. 05-41302
aggravated assault. Mata’s argument is unavailing in light of our decision in
United States v. Mungia-Portillo, 484 F.3d 813, 816-17 (5th Cir. 2007).
In light of Apprendi v. New Jersey, 530 U.S. 466 (2000), Mata also
challenges the constitutionality of § 1326(b)'s treatment of prior felony and
aggravated felony convictions as sentencing factors rather than elements of the
offense that must be found by a jury. This court has held that this issue is “fully
foreclosed from further debate.” United States v. Pineda-Arrellano, ___ F.3d ___,
2007 WL 2033992, *1 (5th Cir. July 17, 2007).
AFFIRMED.
2