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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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




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