                                                                 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should not be published and is not precedent except under the limited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
