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

                                                                   FILED
                                                                 October 2, 2007
                                 No. 05-41706
                               Summary Calendar               Charles R. Fulbruge III
                                                                      Clerk

UNITED STATES OF AMERICA

                                            Plaintiff-Appellee

v.

HUGO GALICIA, also known as Hugo Galicia-Romero

                                            Defendant-Appellant


                 Appeal from the United States District Court
                      for the Southern District of Texas
                         USDC No. 1:05-CR-479-ALL


Before WIENER, GARZA, and BENAVIDES, Circuit Judges.
PER CURIAM:*
      Defendant-Appellant Hugo Galicia appeals his guilty-plea conviction and
sentence for being illegally present in the United States following a prior
deportation, in violation of 8 U.S.C. § 1326. Galicia contends 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. The Texas statute, TEX.
PENAL CODE § 22.02, is substantially similar to the definition of “aggravated

      *
      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should not be published and is not precedent except under the limited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. 05-41706

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. 2007).
      In light of Apprendi v. New Jersey, 530 U.S. 466 (2000), Galicia 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, 492 F.3d 624, 625 (5th
Cir. 2007), petition for cert. filed (Aug. 28, 2007)(No. 07-6202). The judgment of
the district court is
AFFIRMED.




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