Opinion
No. 06-40008 Summary Calendar.
September 27, 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, Molly E. Odom, Federal Public Defender's Office, Southern District of Texas, Houston, TX, for Defendant-Appellant.
Appeal from the United States District Court for the Southern District of Texas, No. 7:04-CR-760.
Before REAVLEY, SMITH, and BARKSDALE, Circuit Judges.
Carlos Molina-Cano appeals his guilty-plea conviction of and sentence for illegal reentry following deportation. He argues that the district court erroneously construed his Texas conviction of aggravated assault as a crime of violence and incorrectly applied a sentence enhancement under U.S.S.G. § 2L1.2. Our recent decision in United States v. Guillen-Alvarez, 489 F.3d 197, 199-201 (5th Cir. 2007), renders Molina-Cano's argument unavailing.
In light of Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), Molina-Cano challenges the constitutionality of 8 U.S.C. § 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 that 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). Accord United States v. Galvan-Lozano, 242. FedAppx. 234, 234-35 (5th Cir. 2007) (per curiam).
AFFIRMED.