                                                            United States Court of Appeals
                                                                     Fifth Circuit
                                                                   F I L E D
                IN THE UNITED STATES COURT OF APPEALS
                                                                   June 11, 2007
                        FOR THE FIFTH CIRCUIT
                        _____________________                 Charles R. Fulbruge III
                                                                      Clerk
                             No. 06-41256
                        _____________________

UNITED STATES OF AMERICA,

                                                 Plaintiff - Appellee,

                                 versus

ANGELINO GARCIA-RAMIREZ,

                                           Defendant - Appellant.
_________________________________________________________________

           Appeal from the United States District Court
         for the Southern District of Texas, Brownsville
                      USDC No. 1:06-CR-146-1
_________________________________________________________________

Before JOLLY, STEWART, and PRADO, Circuit Judges.

PER CURIAM:*

     Angelino   Garcia-Ramirez   appeals   his   sentence    for    illegal

reentry.   We AFFIRM.

                                   I.

     Garcia-Ramirez argues that the district court committed plain

error by imposing a sixteen-level “crime of violence” enhancement

under U.S.S.G. § 2L1.2(b)(1)(A)(ii) for his previous conviction of

aggravated assault in Texas. Because Garcia-Ramirez did not object

below, we review under the plain error standard. See United States

v. Villegas, 404 F.3d 355, 358 (5th Cir. 2005).      “This court finds


     *
      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this opinion should not be published and is not precedent except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.
plain error when: (1) there was an error; (2) the error was clear

and obvious; and (3) the error affected the defendant’s substantial

rights.”   Id.    “If all three conditions are met an appellate court

may then exercise its discretion to notice a forfeited error but

only if (4) the error seriously affects the fairness, integrity, or

public reputation of judicial proceedings.”          Id. at 358-59.

     Prior to his illegal reentry for which he was sentenced,

Garcia-Ramirez was convicted in 2000 of aggravated assault upon

three victims.      The aggravated assault indictment alleged that

Garcia-Ramirez “did then and there, intentionally or knowingly

threaten [each victim] with imminent bodily injury and did then and

there use or exhibit a deadly weapon, to-wit: a knife, during the

commission   of    said   assault.”       Given   this   language   in   the

indictment, it is clear that Garcia-Ramirez was convicted of

aggravated assault in violation of Texas Penal Code § 22.02, based

on the incorporated offense of assault as defined in Texas Penal

Code § 22.01(a)(2).

     These facts are nearly identical to the facts in our recent

decision in United States v. Guillen-Alvarez, No. 05-41787, slip

op. (5th Cir. June 6, 2007).     In Guillen-Alvarez, as in this case,

the defendant was previously convicted in 2000 of aggravated

assault with a deadly weapon, to wit: a knife, thus in violation of

Texas Penal Code § 22.02.      See id. at *4.      But there, unlike the

facts before us, the charging documents provided insufficient

details for us to determine the subsection of Texas Penal Code §

                                      2
22.01(a) defining the defendant’s incorporated offense of assault.

See id.      Nevertheless, based on this Court’s holding in United

States v. Mungia-Portillo, No. 06-40273, 2007 WL 1127859 (5th Cir.

Apr. 17, 2007), we held that the defendant’s aggravated assault

conviction under Texas Penal Code § 22.02 constituted a crime of

violence, regardless of the subsection of Texas Penal Code §

22.01(a) defining the defendant’s incorporated offense of assault.

See id. at *7.

     Here, Guillen-Alvarez is controlling and we find no plain

error.    Garcia-Ramirez’s argument fails and his sentence must be

affirmed.

                                  II.

     Garcia-Ramirez argues that his sentence is unconstitutional

because it exceeds the statutory maximum sentence for violations of

8   U.S.C.    §   1326(a).   As   this   argument   is   foreclosed   by

Almendarez-Torres v. United States, 523 U.S. 224, 239-47 (1998), it

fails.

                                  III.

     For the foregoing reasons, Garcia-Ramirez’s sentence is

                                                              AFFIRMED.




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