IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
October 3, 2007
No. 06-40158
Summary Calendar Charles R. Fulbruge III
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
ARTURO REYES-GOMEZ,
Defendant-Appellant.
Appeal from the United States District Court
for the Southern District of Texas
No. 5:05-CR-1694-ALL
Before REAVLEY, SMITH, and BARKSDALE, Circuit Judges.
PER CURIAM:*
Arturo Reyes-Gomez appeals his guilty-plea conviction of and sentence for
violating 8 U.S.C. § 1326 by being found in the United States without permission
*
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should not be published and is not precedent except under the limited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. 06-40158
following removal. He challenges the decision to enhance his offense level 16
levels pursuant to U.S.S.G. § 2L1.2(b)(1)(A)(ii) based on a determination that his
1994 Texas conviction of aggravated assault with a deadly weapon is a crime of
violence. He contends that the offense, as set forth in TEXAS PENAL CODE
§§ 22.01(a)(2) and 22.02(a), is not among those enumerated in § 2L1.2, comment.
(n.1(B)(iii)), and does not have “as an element the use, attempted use, or threat-
ened use of physical force against the person of another.” The Texas aggravated-
assault statute, § 22.02, is substantially similar to the definition of “aggravated
assault” found in the Model Penal Code and thus qualifies as the enumerated of-
fense of “aggravated assault” under the guidelines. See United States v. Guillen-
Alvarez, 489 F.3d 197, 199-201 (5th Cir. 2007).
In light of Apprendi v. New Jersey, 530 U.S. 466 (2000), Reyes-Gomez chal-
lenges the constitutionality of § 1326(b)’s treatment of prior felony and aggravat-
ed felony convictions as sentencing factors rather than elements of the offense
that must be found by a jury. This court has held that that issue is “fully fore-
closed from further debate.” United States v. Pineda-Arrellano, 492 F.3d 624,
625 (5th Cir. 2007), petition for cert. filed (Aug. 28, 2007) (No. 07-6202).
The judgment is AFFIRMED.
2