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

                                                                   FILED
                                                                November 19, 2007
                                No. 06-41005
                              Summary Calendar               Charles R. Fulbruge III
                                                                     Clerk

UNITED STATES OF AMERICA

                                           Plaintiff-Appellee

v.

RAUL HECTOR QUINTANILLA-GARAY

                                           Defendant-Appellant


                 Appeal from the United States District Court
                      for the Southern District of Texas
                        USDC No. 5:05-CR-1929-ALL


Before KING, DAVIS, and CLEMENT, Circuit Judges.
PER CURIAM:*
      Raul Hector Quintanilla-Garay (Quintanilla) appeals his guilty-plea
conviction and sentence for illegally reentering the United States following
deportation, in violation of 8 U.S.C. § 1326. Quintanilla 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

      *
      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should not be published and is not precedent except under the limited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. 06-41005

definitions of aggravated assault because it may 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. 2007), cert. denied, Beltran-Garcia v. United States, ___S. Ct. ___,
2007 WL 2590919 (Oct. 9, 2007).
      In light of Apprendi v. New Jersey, 530 U.S. 466 (2000), Quintanilla
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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