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

                                                                    FILED
                                                                 November 21, 2007
                                 No. 07-20204
                               Summary Calendar               Charles R. Fulbruge III
                                                                      Clerk

UNITED STATES OF AMERICA

                                            Plaintiff-Appellee

v.

ALEJANDRO SERRANO-GARCIA, also known as Ambrosio Munoz Orozco, also
known as Ambrosia Orozco-Munoz, also known as Adan Rodriguez

                                            Defendant-Appellant


                 Appeal from the United States District Court
                      for the Southern District of Texas
                         USDC No. 4:06-CR-281-ALL


Before REAVLEY, SMITH, and BARKSDALE, Circuit Judges.
PER CURIAM:*
      Alejandro Serrano-Garcia, whose true name is Ambrosio Orozco-Munoz,
appeals from his conviction by guilty plea of illegal reentry, pursuant to 8 U.S.C.
§ 1326. Serrano-Garcia’s appeal is frivolous.
      Serrano-Garcia contends for the first time on appeal that the district court
erred by adjusting his offense level for having committed a crime of violence
because the district court and the probation officer erroneously found that he


      *
      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should not be published and is not precedent except under the limited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. 07-20204

remained unlawfully in the United States after he was convicted of rape in 1981.
Serrano-Garcia acknowledges that he was deported after his 1981 conviction,
and he does not challenge the characterization of his rape conviction as a crime
of violence. The crime-of-violence adjustment was appropriate, see U.S.S.G.
§ 2L1.2(b)(1)(A)(ii), and Serrano-Garcia has failed to demonstrate error, plain or
otherwise. See United States v. Calverley, 37 F.3d 160, 162-64 (5th Cir. 1994) (en
banc).
      Serrano-Garcia contends that the Government was required to prove the
allegation in the indictment that he “previously had been denied admission,
excluded, deported, and removed from the United States.”            Because the
Government alleged that he had been denied admission, excluded, deported, and
removed, Serrano-Garcia argues, the Government was required to prove all of
those elements.
      Section 1326(a) penalizes aliens who enter the United States if they have
“been denied admission, excluded, deported, or removed or [have] departed the
United States while an order of exclusion, deportation, or removal is
outstanding.” “[A] disjunctive statute may be pleaded conjunctively and proved
disjunctively.” United States v. Pena-Rodriguez, 110 F.3d 1120, 1131 (5th Cir.
1997) (quotation marks and citation omitted). Serrano-Garcia acknowledged
that he had been deported after he was convicted of rape. The Government only
need prove that he had been deported; it did not need to prove that he had been
denied admission, been excluded, and been removed. See Pena-Rodriguez, 110
F.3d at 1131.
      Serrano-Garcia makes numerous contentions premised on the assumption
that rape, as opposed to aggravated rape, is not an aggravated felony for
purposes of § 1326(b)(2), which provides a 20-year maximum sentence for aliens
“whose removal was subsequent to a conviction for commission of an aggravated
felony.” The statutory definition of an “aggravated felony” for purposes of § 1326
encompasses “murder, rape, or sexual abuse of a minor.”                 8 U.S.C.

                                        2
                                  No. 07-20204

§ 1101(a)(43)(A). The statute does not require a rape to be aggravated for it to
qualify as an aggravated felony. Serrano-Garcia’s 1981 rape conviction qualifies
as an aggravated felony, exposing him to the 20-year maximum statutory
sentence of § 1326(b)(2). All of Serrano-Garcia’s contentions based on the
premise that only aggravated rape can fall within the definition of an aggravated
felony are without merit.
      Serrano-Garcia contends that trial counsel was ineffective for failing to
raise the issues that appellate counsel raises regarding whether rape qualifies
as an aggravated felony. Because Serrano-Garcia’s arguments about whether
rape qualifies as an aggravated felony are without merit, trial counsel was not
ineffective for failing to raise those arguments in the district court.
      Serrano-Garcia’s appeal is without arguable merit and is frivolous. See
Howard v. King, 707 F.2d 215, 219-20 (5th Cir. 1983). Because the appeal is
frivolous, it is dismissed. See 5TH CIR. R. 42.2.
      APPEAL DISMISSED.




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