                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                December 9, 2003

                                                          Charles R. Fulbruge III
                                                                  Clerk
                            No. 03-30349
                        Conference Calendar



UNITED STATES OF AMERICA,

                                    Plaintiff-Appellee,

versus

PEDRO SANTILLANA,

                                    Defendant-Appellant.

                        --------------------
           Appeal from the United States District Court
               for the Eastern District of Louisiana
                       USDC No. 02-CR-238-3-S
                        --------------------

Before DAVIS, EMILIO M. GARZA, and DENNIS, Circuit Judges.

PER CURIAM:*

     Pedro Santillana appeals his career-offender sentence

following a guilty-plea conviction for marijuana-trafficking

crimes.   He contends that a Texas aggravated-assault conviction

used to establish his career-offender status was not a “crime of

violence” due to the facts that he was only 17 at the time of

the prior felony, the crime involved only a BB gun, no one was

harmed, and he received only probation.   The underlying facts

need not be considered because the guidelines define “crime of

     *
        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that this opinion should not be published and is not precedent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. 03-30349
                               -2-

violence” specifically to include “aggravated assault.”      See

U.S.S.G. § 4B1.2, comment. (n.1); United States v. Guerra, 962

F.2d 484, 485-86 & n.4 (5th Cir. 1992) (relying on application

note defining “crime of violence”).

     Santillana expressly declares that he is not appealing the

district court’s discretionary refusal to depart downward from

career-offender status pursuant to U.S.S.G. § 4A1.3.   His

remaining argument on appeal is thus reduced to a meritless

recharacterization of his unsuccessful first argument.    The

judgment of the district court is AFFIRMED.
