                                                        United States Court of Appeals
                                                                 Fifth Circuit
                                                              F I L E D
                  UNITED STATES COURT OF APPEALS
                       For the Fifth Circuit                  March 16, 2005

                                                          Charles R. Fulbruge III
                                                                  Clerk
                            No. 04-40313



                     UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee,

                               VERSUS


                      FRANCISCO GOMEZ-PINEDA,


                                                 Defendant-Appellant.


           Appeal from the United States District Court
                For the Southern District of Texas
                           7:03-CR-896-1



Before DAVIS, SMITH and DeMOSS, Circuit Judges.

PER CURIAM:*

      The only significant issue presented in this appeal is whether

the district court erred in finding that Gomez-Pineda’s prior South

Carolina conviction for Assault and Battery of a Highly Aggravated

Nature constitutes a “crime of violence” under § 2L1.2(b)(1)(A)(ii)

of the United States Sentencing Guidelines.1      The district court


  *
   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opinion should not be published and is not precedent except under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.
  1
   The district court sentenced Gomez-Pineda using the 2002 edition
of the Guidelines with the April 30, 2003, amendments; all
Guidelines sections and Commentary referenced herein refer to this
answered this question in the affirmative and enhanced Gomez-

Pineda’s offense level by 16 levels.

     Gomez-Pineda did not object to the 16-level enhancement before

the district court, but contends on appeal that the district court

plainly erred in concluding that the South Carolina conviction

qualified   as   a   “crime   of   violence”   warranting   the   16-level

enhancement.

     We disagree.     The explanatory definition in Part II of the

commentary to § 2.L1.2 lists a number of “enumerated offenses” that

qualify as “crimes of violence.”         One of these enumerated offenses

is aggravated assault.    Although the elements of this offense vary

from state to state, we conclude that the district court did not

plainly err in concluding that the South Carolina offense qualified

as the enumerated offense of aggravated assault.

     Gomez-Pineda also contends that the provisions of 8 U.S.C. §

1326 (b)(1) and (2) which provide that a defendant may be sentenced

to 10 or 20 years imprisonment for a prior “felony” or “aggravated

felony” are unconstitutional in light of Apprendi v. New Jersey,

530 U.S. 446 (2000).          As appellant recognizes, this issue is

controlled by Almendarez-Torres v. United States, 523 U.S. 224, 235

(1998), in which the Supreme Court rejected this argument.

     AFFIRMED.




version.

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