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

                                                                            FILED
                                                                         February 13, 2008
                                     No. 07-40214
                                   Summary Calendar                   Charles R. Fulbruge III
                                                                              Clerk

UNITED STATES OF AMERICA

                                                  Plaintiff-Appellee

v.

GONZALO BRIONES-ZAPATA

                                                  Defendant-Appellant


                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 7:06-CR-986-1


Before HIGGINBOTHAM, STEWART, and OWEN, Circuit Judges.
PER CURIAM:*
       Gonzalo Briones-Zapata appeals his guilty-plea conviction and sentence
for illegal reentry into the United States after having been deported. Briones-
Zapata contends that the district court erred by 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



       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 07-40214

broader definition than most other definitions of aggravated assault because it
may be committed by threatening the victim with a weapon.
      This court has previously held that aggravated assault under Texas Penal
Code § 22.02 (Vernon 2000), which is identical to the 2006 version of the statute
at issue in the instant case, is substantially similar to the generic, common sense
definition of “aggravated assault” and therefore 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); see also United States v. Rojas-Gutierrez, No. 06-50584, __ F.3d __, 2007
WL 4341006 (5th Cir. Dec. 13, 2007); United States v. Galves, No. 07-20223 (5th
Cir. Jan. 22, 2007) (unpublished); United States v. Quintanilla-Garay, No. 06-
41005, 2007 WL 4105182 (5th Cir. Nov. 19, 2007) (unpublished); United States
v. Delgado-Salazar, No. 05-40890, 2007 WL 3145012 (5th Cir. Oct. 25, 2007)
(unpublished).
      In light of Apprendi v. New Jersey, 530 U.S. 466 (2000), Briones-Zapata
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 (1995). United States v.
Pineda-Arrellano, 492 F.3d 624, 625-26 (5th Cir. 2007), cert. denied, 2008 WL
59441 (Jan. 7, 2008) (No. 07-6202).
      The judgment of the district court is AFFIRMED.




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