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

                                                                       FILED
                                                                     October 24, 2007
                                      No. 06-40659
                                    Summary Calendar              Charles R. Fulbruge III
                                                                          Clerk

UNITED STATES OF AMERICA

                                                Plaintiff-Appellee

v.

REYNALDO CADENAS-SANCHEZ, also known as Jesus Martinez-Guardiola

                                                Defendant-Appellant


                     Appeal from the United States District Court
                          for the Southern District of Texas
                               USDC No. 5:05-CR-2380


Before JONES, Chief Judge, and REAVLEY and PRADO, Circuit Judges.
PER CURIAM:*
        Reynaldo Cadenas-Sanchez (Cadenas) appeals his guilty-plea conviction
and sentence for being illegally present in the United States following a prior
deportation, in violation of 8 U.S.C. § 1326. Cadenas contends that the district
court       erred   in   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. The Texas statute,
TEX. PENAL CODE § 22.02, is substantially similar to the definition of “aggravated

        *
      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should not be published and is not precedent except under the limited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. 06-40659

assault” under the Model Penal Code 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).
      In light of Apprendi v. New Jersey, 530 U.S. 466 (2000), Cadenas
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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