IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
February 14, 2008
No. 07-40607
Summary Calendar Charles R. Fulbruge III
Clerk
UNITED STATES OF AMERICA
Plaintiff-Appellee
v.
GUILLERMO EUGENIO ROJAS
Defendant-Appellant
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 2:07-CR-37-ALL
Before JOLLY, DENNIS, and PRADO, Circuit Judges.
PER CURIAM:*
Guillermo Eugenio Rojas appeals his guilty-plea conviction and sentence
for illegally reentering the United States following deportation, in violation of
8 U.S.C. § 1326. Rojas contends that the district court erred by 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 is more
broadly defined than most other definitions of aggravated assault because it may
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 07-40607
be committed by threatening the victim with a weapon. The Texas statute, TEX.
PENAL CODE § 22.02, is substantially similar to the generic, common sense
definition of “aggravated assault” 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, Beltran-Garcia v. United
States, 128 S. Ct. 418 (2007),.
Rojas also maintains that the “felony” and “aggravated felony” provisions
of 8 U.S.C. § 1326(b)(1) and (b)(2) are unconstitutional in light of Apprendi v.
New Jersey, 530 U.S. 466 (2000). This argument is foreclosed by Almendarez-
Torres v. United States, 523 U.S. 224, 235 (1998), which held that 8 U.S.C. §
1326(b)(2) is a penalty provision and not a separate criminal offense. United
States v. Pineda-Arrellano, 492 F.3d 624, 625 (5th Cir.2007), petition for cert.
filed, (Aug. 28, 2007) (No. 07-6202).
AFFIRMED.
2