Summary Calendar UNITED STATES OF AMERICA v. Hugo Galicia, also known as Hugo Galicia-Romero

* 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should not be published and is not precedent except under the limited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. 05-41706
Summary Calendar
UNITED STATES OF AMERICA
Plaintiff-Appellee
v.
HUGO GALICIA, also known as Hugo Galicia-Romero
Defendant-Appellant
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 1:05-CR-479-ALL
Before WIENER, GARZA, and BENAVIDES, Circuit Judges.
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)(1)(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
United States Court of Appeals
Fifth Circuit
F I L E D
October 2, 2007
Charles R. Fulbruge III
Clerk

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No. 05-41706
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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 (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.

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