IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 10-20248

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee

v.

ABRAHAM PEREZ CASTRO, also known as Abraham Castro Perez, also known

as Abraham Perez!Castro, also known as Abraham Perez,

Defendant-Appellant

Appeal from the United States District Court

for the Southern District of Texas

USDC No. 4:09-CR-672-1

Before JOLLY, STEWART, and CLEMENT, Circuit Judges.

PER CURIAM:

*

Abraham Perez Castro appeals his guilty plea conviction for illegal reentry

in violation of 8 U.S.C. § 1326(a) and (b)(2). Castro contends that the district

court erred by imposing a 16-level enhancement under U.S.S.G.

§ 2L1.2(b)(1)(A)(ii) because his Texas conviction for aggravated assault is not a

crime of violence. He argues that the Model Penal Code and the majority of

states do not include in their definition of aggravated assault the method of

United States Court of Appeals

Fifth Circuit

F I L E D

January 7, 2011

Lyle W. Cayce

Clerk

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.

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No. 10-20248

committing aggravated assault through threatening conduct. Thus, he argues

that Texas is in the minority of jurisdictions in which aggravated assault may

be committed by threatening conduct. Because the Texas offense of aggravated

assault can be committed in a way that does not fall within the generic,

contemporary meaning of aggravated assault, Castro argues that it does not

qualify as the enumerated offense of aggravated assault. Castro argues further

that United States v. Guillen-Alvarez, 489 F.3d 197 (5th Cir. 2007), is not

dispositive, as it does not address the argument that the offense encompasses

threatening conduct and, therefore, does not meet the generic definition of

aggravated assault.

“Although post-[United States v. Booker, 543 U.S. 220 (2005)], the

Sentencing Guidelines are advisory only, and an ultimate sentence is reviewed

for reasonableness under an abuse-of-discretion standard, the district court must

still properly calculate the guideline sentencing range for use in deciding on the

sentence to impose.” United States v. Goss, 549 F.3d 1013, 1016 (5th Cir. 2008).

A challenge to the district court’s determination that a prior conviction is a crime

of violence is a challenge to the court’s application of the Guidelines that we

review de novo. United States v. Sandoval-Ruiz, 543 F.3d 733, 734-35 (5th Cir.

2008).

We have rejected the same argument made by Castro in other cases. See

United States v. Delgado-Salazar, 252 F. App’x 596, 597-98 (5th Cir. 2007);

United States v. Peraza-Chicas, 254 F. App’x 399, 403-05 (5th Cir. 2007)

(addressing a different statute). We find these cases to be persuasive. See

Ballard v. Burton, 444 F.3d 391, 401 & n.7 (5th Cir. 2006). Accordingly, our

holding in Guillen-Alvarez, that a conviction under the Texas aggravated assault

statute, Texas Penal Code § 22.02, is substantially similar to the generic,

contemporary definition of aggravated assault and thus qualifies as the

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enumerated offense of aggravated assault, is controlling. Guillen-Alvarez, 489

F.3d at 200-01.

The judgment of the district court is AFFIRMED.

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