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

                                                                   FILED
                                                                 October 26, 2007
                                No. 06-40870
                              Summary Calendar               Charles R. Fulbruge III
                                                                     Clerk

UNITED STATES OF AMERICA

                                            Plaintiff-Appellee

v.

NICOLAS AVITU-RAMOS

                                            Defendant-Appellant


                 Appeal from the United States District Court
                      for the Southern District of Texas
                         USDC No. 7:05-CR-902-ALL


Before KING, DAVIS, and CLEMENT, Circuit Judges.
PER CURIAM:*
      Nicolas Avitu-Ramos pleaded guilty, pursuant to a written agreement, to
being illegally present in the United States following a prior deportation and was
sentenced to 57 months in prison and two years of supervised release. On
appeal, Avitu-Ramos argues that the 16-level crime-of-violence increase under
U.S.S.G. § 2L1.2(b)(1)(A)(ii) was erroneous, because his Texas convictions of
aggravated assault did not qualify as crimes of violence under either definition



      *
      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should not be published and is not precedent except under the limited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. 06-40870

applicable to that provision. In United States v. Guillen-Alvarez, 489 F.3d 197,
199-201 (5th Cir. 2007), this court held that aggravated assault under TEX.
PENAL CODE § 22.02(a) qualified 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 § 2L1.2(b)(1)(A)(ii) was not imposed in
error.
         In light of Apprendi v. New Jersey, 530 U.S. 466 (2000), Avitu-Ramos
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).
         AFFIRMED.




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