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

                                                                            FILED
                                                                         February 19, 2008
                                     No. 07-40089
                                   Summary Calendar                   Charles R. Fulbruge III
                                                                              Clerk

UNITED STATES OF AMERICA

                                                  Plaintiff-Appellee

v.

GILBERTO CHAVEZ-SIFUENTES

                                                  Defendant-Appellant


                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 7:06-CR-683-1


Before GARWOOD, WIENER, and BARKSDALE, Circuit Judges.
PER CURIAM:*
       Gilberto Chavez-Sifuentes appeals his guilty-plea conviction and sentence
for being found in the United States following a prior deportation, in violation
of 8 U.S.C. § 1326. Chavez-Sifuentes argues 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. He contends that the Texas crime of aggravated assault
has a broader definition than most other definitions of aggravated assault


       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 07-40089

because it may be committed by threatening the victim with a weapon. The
Texas statute, TEX. PENAL CODE ANN. § 22.02, is substantially similar to the
definition of “aggravated 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.), cert. denied,
128 S. Ct. 418 (2007).
      In light of Apprendi v. New Jersey, 530 U.S. 466 (2000), Chavez-Sifuentes
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 argument is foreclosed by
Almendarez-Torres v. United States, 523 U.S. 224, 235 (1998). United States v.
Pineda-Arrellano, 492 F.3d 624, 625 (5th Cir. 2007), cert. denied, 128 S.Ct. 872
(Jan. 7, 2008) (No. 07-6202). The judgment of the district court is AFFIRMED.




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