Summary Calendar UNITED STATES OF AMERICA v. Nicolas Avitu-Ramos

* 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should not be published and is not precedent except under the limited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.
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 06-40870
Summary Calendar
UNITED STATES OF AMERICA
Plaintiff-Appellee
v.
NICOLAS AVITU-RAMOS
Defendant-Appellant
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 7:05-CR-902-ALL
Before KING, DAVIS, and CLEMENT, Circuit Judges.
PER CURIAM:*
Nicolas Avitu-Ramos pleaded guilty, pursuant to a written agreement, to
being illegally present in the United States following a prior deportation and was
sentenced to 57 months in prison and two years of supervised release. On
appeal, Avitu-Ramos argues that the 16-level crime-of-violence increase under
U.S.S.G. § 2L1.2(b)(1)(A)(ii) was erroneous, because his Texas convictions of
aggravated assault did not qualify as crimes of violence under either definition
United States Court of Appeals
Fifth Circuit
F I L E D
October 26, 2007
Charles R. Fulbruge III
Clerk

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No. 06-40870
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applicable to that provision. In United States v. Guillen-Alvarez, 489 F.3d 197,
199-201 (5th Cir. 2007), this court held that aggravated assault under TEX.
PENAL CODE § 22.02(a) qualified as a conviction for an enumerated offense of
aggravated assault and a crime of violence under § 2L1.2(b)(1)(A)(ii). The 16-
level crime-of-violence increase under § 2L1.2(b)(1)(A)(ii) was not imposed in
error.
In light of Apprendi v. New Jersey, 530 U.S. 466 (2000), Avitu-Ramos
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).
AFFIRMED.

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