UNITED STATES of America, Plaintiff-Appellee v. Hugo GALICIA, also known as Hugo Galicia-Romero, Defendant-Appellant, 249 F. App'x 357

PER CURIAM: Defendant-Appellant Hugo Galicia appeals his guilty-plea conviction and sentence for being illegally present in the United States following a prior deportation, in violation of 8 U.S.C. § 1326. Galicia contends that the district court erred in imposing a 16-level enhancement under U.S.S.G. § 2L1.2(b)(l)(A)(ii) because his prior Texas conviction for aggravated assault is not a crime of violence under the Sentencing Guidelines. The Texas statute, Tex.

Penal Code § 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.2007). In light of Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), Galicia 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 court has held that this issue is “fully foreclosed from further debate.” United States v. Pineda-Arrellano, 492 F.3d 624, 625 (5th Cir.2007), petition for cert, filed (Aug. 28, 2007)(No. 07-6202). The judgment of the district court is AFFIRMED. Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4.