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

                                                                  FILED
                                                                October 17, 2007
                               No. 06-40718
                             Summary Calendar              Charles R. Fulbruge III
                                                                   Clerk




UNITED STATES OF AMERICA ,

                                          Plaintiff-Appellee,

v.

GABRIEL HERNANDEZ-IGNACIO,

                                          Defendant-Appellant.




                Appeal from the United States District Court
                     for the Southern District of Texas
                              No. 7:05-CR-1119




Before REAVLEY, SMITH, and BARKSDALE, Circuit Judges.
PER CURIAM:*


     Gabriel Hernandez-Ignacio pleaded guilty of being present illegally in the
United States after deportation and was sentenced to 57 months in prison and

     *
      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should not be published and is not precedent except under the limited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. 06-40718

two years of supervised release. For the first time on appeal, Hernandez-Ignacio
argues that the 16-level crime-of-violence increase under U.S.S.G. § 2L1.2(b)(1)-
(A)(ii) is erroneous because his Texas conviction of aggravated assault does not
qualify as a crime of violence under either definition applicable to that provision.
In United States v. Guillen-Alvarez, 489 F.3d 197, 199-201 (5th Cir. 2007), cert.
denied, 2007 WL 2590919 (U.S. Oct. 9, 2007) (No. 07-6315), this court held that
aggravated assault under TEX. PENAL CODE § 22.02(a) qualifies as a conviction
for an enumerated offense of aggravated assault and a crime of violence under
§ 2L1.2(b)(1)(A)(ii). The 16-level crime-of-violence increase under that subsec-
tion was not imposed in error, plain or otherwise. See United States v. Mares,
402 F.3d 511, 520 (5th Cir. 2005).
      In light of Apprendi v. New Jersey, 530 U.S. 466 (2000), Hernandez-Ignacio
challenges the constitutionality of § 1326(b)’s treatment of prior felony and ag-
gravated felony convictions as sentencing factors rather than elements of the of-
fense 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).
      AFFIRMED.




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