United States v. Chavez-Sifuentes

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit

FILED
February 19, 2008
No. 07-40089
Summary Calendar Charles R. Fulbruge III
Clerk

UNITED STATES OF AMERICA

Plaintiff-Appellee

v.

GILBERTO CHAVEZ-SIFUENTES

Defendant-Appellant

Appeal from the United States District Court
for the Southern District of Texas
USDC No. 7:06-CR-683-1

Before GARWOOD, WIENER, and BARKSDALE, Circuit Judges.
PER CURIAM:*
Gilberto Chavez-Sifuentes appeals his guilty-plea conviction and sentence
for being found in the United States following a prior deportation, in violation
of 8 U.S.C. § 1326. Chavez-Sifuentes argues that the district court erred in
imposing a 16-level enhancement under U.S.S.G. § 2L1.2(b)(1)(A)(ii) because his
prior Texas conviction for aggravated assault is not a crime of violence under the
Sentencing Guidelines. He contends that the Texas crime of aggravated assault
has a broader definition than most other definitions of aggravated assault

*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 07-40089

because it may be committed by threatening the victim with a weapon. The
Texas statute, TEX. PENAL CODE ANN. § 22.02, is substantially similar to the
definition of “aggravated assault” under the Model Penal Code and thus qualifies
as the enumerated offense of “aggravated assault” under the Guidelines. See
United States v. Guillen-Alvarez, 489 F.3d 197, 199-201 (5th Cir.), cert. denied,
128 S. Ct. 418 (2007).
In light of Apprendi v. New Jersey, 530 U.S. 466 (2000), Chavez-Sifuentes
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 argument is foreclosed by
Almendarez-Torres v. United States, 523 U.S. 224, 235 (1998). United States v.
Pineda-Arrellano, 492 F.3d 624, 625 (5th Cir. 2007), cert. denied, 128 S.Ct. 872
(Jan. 7, 2008) (No. 07-6202). The judgment of the district court is AFFIRMED.

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