                                                                 United States Court of Appeals
                                                                          Fifth Circuit
                                                                        F I L E D
                 IN THE UNITED STATES COURT OF APPEALS
                         FOR THE FIFTH CIRCUIT                          June 29, 2007

                                                                   Charles R. Fulbruge III
                                                                           Clerk
                                No. 06-40912
                              Summary Calendar


                         UNITED STATES OF AMERICA,

                                                        Plaintiff-Appellee,

                                     versus

                    MAURICIO EGARDO TEJADA-CALDERON,

                                                       Defendant-Appellant.


            Appeal from the United States District Court
                 for the Southern District of Texas
                       USDC No. 5:04-CR-1410-1


Before JONES, Chief Judge, and JOLLY and OWEN, Circuit Judges.

PER CURIAM:*

            Mauricio Egardo Tejada-Calderon (Tejada), who pleaded

guilty to one count of illegal reentry, in violation of 8 U.S.C.

§ 1326, appeals the forty-six-month sentence he received on remand

for resentencing.        He argues that the district court erred in

assessing    a    sixteen-level       increase,     pursuant      to    U.S.S.G.

§   2L1.2(a),    based   on   the   determination    that   he    had    a   prior

conviction for a crime of violence. Specifically, he contends that

his Indiana felony battery conviction was not a crime of violence



      *
      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this opinion should not be published and is not precedent except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.
because it was neither an enumerated offense nor had as an element

the use of force.

            This   court     reviews     de   novo   the    district    court’s

interpretation of the Sentencing Guidelines.                 United States v.

Sarmiento-Funes, 374 F.3d 336, 338 (5th Cir. 2004).                    Tejada’s

state-court indictment demonstrated that he was convicted of felony

battery with a deadly weapon, in violation of INDIANA CODE § 35-42-2-

1(a)(3).    As Tejada argues, the Indiana statute does not speci-

fically require the use of force and can be committed by an

offensive touching.      Nevertheless, as the Government argues, “the

touching of an individual with a deadly weapon creates a sufficient

threat of force to qualify as a crime of violence.”              United States

v. Dominguez, 479 F.3d 345, 348 (5th Cir. 2007); see also United

States v. Treto-Martinez, 421 F.3d 1156, 1157-60 (10th Cir. 2005),

cert. denied, 126 S. Ct. 1089 (2006).            Accordingly, Tejada’s con-

viction    was   one   for   a   crime   of   violence   under   the   residual

definition, and the sixteen-level enhancement was appropriate. See

id.; § 2L1.2(a).

            Additionally, Tejada challenges the constitutionality of

8 U.S.C. § 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.                  He raised the same

claim, unsuccessfully, in the initial appeal in this case.                   As

Tejada concedes, the previous determinations of this court stand as



                                         2
the law of the case, and the issue will not be revisited.     See

United States v. Becerra, 155 F.3d 740, 752-53 (5th Cir. 1998).

          The district court’s judgment is AFFIRMED.




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