Opinion
No. 06-41256.
June 11, 2007.
James Lee Turner, Assistant U.S. Attorney, U.S. Attorney's Office, Southern District of Texas, Houston, TX, for Plaintiff-Appellee.
Marjorie A. Meyers, Federal Public Defender, Federal Public Defender's Office, Southern District of Texas, Houston, TX, for Defendants-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.
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 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, 489 F.3d 197 (5th Cir. 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 199. But there, unlike the facts before us, the charging documents provided insufficient details for us to determine the subsection of Texas Penal Code § 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, 484 F.3d 813 (5th Cir. 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 200.
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, 239-17, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998), it fails.
III.
For the foregoing reasons, Garcia-Ramirez's sentence is
AFFIRMED.