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

                                                                            FILED
                                                                         February 12, 2008

                                     No. 07-50512                     Charles R. Fulbruge III
                                   Summary Calendar                           Clerk


UNITED STATES OF AMERICA

                                                  Plaintiff-Appellee
v.

MARIO DEON THOMPSON

                                                  Defendant-Appellant



                   Appeal from the United States District Court
                        for the Western District of Texas
                           USDC No. 3:06-CR-2527-ALL


Before GARWOOD, GARZA and OWEN, Circuit Judges.
PER CURIAM:*
       Mario Deon Thompson pleaded guilty to illegally reentering the United
States following deportation. Thompson was sentenced to thirty-seven months
of imprisonment and a three-year term of supervised release. Thompson timely
appealed.
       Thompson argues that the district court erred in applying, over his timely
objection, a sentence enhancement pursuant to U.S.S.G. 2L1.2(b)(1)(A)(ii). The


       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 07-50512

enhancement was based on the district court’s determination that Thompson’s
prior Florida conviction for aggravated battery was a crime of violence.
Thompson does not argue that he was not charged with a crime of violence.
Indeed, we have held that a conviction under FLA. STAT. ANN. § 784.045(1)(a)1
and 2 is a crime of violence. United States v. Dominguez, 479 F.3d 345, 347-49
(5th Cir.), cert. denied, 127 S.Ct. 2926 (2007). Thompson argues, however, that
the information charging him with aggravated battery with great bodily harm
pursuant to FLA. STAT. ANN. § 784.045(1)(a)1 was insufficient to prove that he
was convicted under that same subsection of the statute. Thompson does not
argue here, nor did he so argue in the district court, that he was actually
convicted of any crime other than the specific crime alleged in the information.
Absent such a claim, the information was sufficient to support the enhancement
under § 2L1.2. See United States v. Torres-Diaz, 438 F.3d 529 (5th Cir.), cert.
denied, 547 U.S. 1012 (2006). The district court’s determination was further
supported by a “Finding of Guilt and Order Withholding Adjudication and
Special Conditions,” which specified that Thompson pleaded guilty to aggravated
battery with great bodily harm.1 Although this document does not bear a judge’s
signature, it has a sufficient indicia of reliability to allow its use as evidence of
Thompson’s prior conviction under FLA. STAT. ANN. § 784.045(1)(a)1. See United
States v. Neri-Hernandez, 504 F.3d 587, 591-92 (5th Cir. 2007). Nothing in the
record suggests that it is not in fact a copy of the judgment of conviction (with


       1
          Thompson, in his brief in this court, also seems to suggest that he might theoretically
have been convicted of violating § 784.045(1)(b) which provides that “aggravated battery”
includes any battery on a pregnant person (whom the defendant knows or should know is
pregnant). Nothing in the record even remotely suggests this and certainly defendant never
suggested below that he was actually convicted under § 784.045(1)(b). Moreover, not only does
the information cite only § 784.045(1)(a) – and not (1)(b) – but it also contains no allegation or
inference that the victim was pregnant (or even female), and hence the information did not
state, or include, any charge under § 784.045(1)(b). Thompson’s contentions in this respect are
meritless, even if we were to assume, arguendo, that a § 784.045(1)(b) offense were not a crime
of violence under § 2L1.2(b)(1)(A)(ii).

                                                2
                                  No. 07-50512

signature on missing second page). The district court did not err in applying the
enhancement under section 2L1.2.
      In light of Apprendi v. New Jersey, 530 U.S. 466 (2000), Thompson
challenges the constitutionality of section 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 stated that this issue is
“fully foreclosed from further debate.” United States v. Pineda-Arrellano, 492
F.3d 624, 625 (5th Cir. 2007), cert. denied, 2008 WL 59441 (Jan. 7, 2008).
                                  AFFIRMED.




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