* 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should not be published and is not precedent except under the limited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. 07-50828

Summary Calendar

UNITED STATES OF AMERICA

Plaintiff-Appellee

v.

EDUARDO FLORES-ROSALES, also known as Andres Franco-Valereano

Defendant-Appellant

Appeal from the United States District Court

for the Western District of Texas

USDC No. 3:06-CR-1717-ALL

Before KING, DAVIS, and CLEMENT, Circuit Judges.

PER CURIAM:*

Eduardo Flores-Rosales (Flores) appeals the sentence imposed following

his guilty-plea conviction for illegal reentry into the United States following

removal. Flores argues that the district court erred by applying a 16-level

enhancement pursuant to U.S.S.G. § 2L1.2(b)(1)(A)(ii) for his being removed

following a conviction for a crime of violence. He maintains that his prior

Arizona conviction for aggravated assault was not a conviction for a crime of

violence because the Arizona statute is broader than the generic definition of

United States Court of Appeals

Fifth Circuit

F I L E D

December 28, 2007

Charles R. Fulbruge III

Clerk
No. 07-50828

2

aggravated assault and because the statute does not require the use of force as

an element of the offense. He further maintains that the sentencing order

produced by the Government was not sufficient evidence of his prior conviction.

As Flores did not produce rebuttal evidence, the sentencing order was

sufficient evidence of his prior conviction. See United States v. Neri-Hernandes,

504 F.3d 587, 590-92 (5th Cir. 2007). That order showed that Flores was

convicted of violating ARIZ. REV. STAT. ANN. §§ 13-1204(A)(2) and 13-1203(A)(2).

While the Arizona statute is slightly broader than the offense of aggravated

assault in the Model Penal Code, these differences are minor, and a conviction

under that statute is a conviction for the offense of aggravated assault as

enumerated in § 2L1.2, comment. (n.1(B)(iii)). See United States v. MungiaPortillo, 484 F.3d 813, 815-17 (5th Cir.), cert denied, 128 S. Ct. 320 (2007);

United States v. Guillen-Alvarez, 489 F.3d 197, 198-201 (5th Cir.), cert. denied,

128 S. Ct. 418 (2007).

Flores argues that his sentence was unreasonable because the district

court employed impermissible double counting and, thus, improperly calculated

his guidelines range by increasing both his offense level and criminal history

points based on the same prior aggravated assault conviction. Citing United

States v. Henry, 288 F.3d 657 (5th Cir. 2002), Flores further contends that his

criminal history should not have been increased based on his prior aggravated

assault conviction because it was an element of the illegal reentry offense.

The Guidelines do not prohibit double counting. See § 2L1.2, comment.

(n.6); see also United States v. Gaytan, 74 F.3d 545, 560 (5th Cir. 1996). This

court has approved of double counting under similar circumstances involving

U.S.S.G. § 2K1.2. See United States v. Hawkins, 69 F.3d 11, 14-15 (5th Cir.

1995). Flores’s reliance on Henry is misplaced as Henry is distinguishable from

the instant case. See Henry, 288 F.3d at 659, 665. Accordingly, Flores has not

shown that the district court erroneously calculated the guideline range of

imprisonment.
No. 07-50828

3

When the district court imposes a sentence within a properly calculated

guidelines range, little explanation is required, and this court will infer that the

district court considered all of the factors for a fair sentence set forth in the

Guidelines. United States v. Mares, 402 F.3d 511, 519 (5th Cir. 2005). Flores

has not demonstrated that the sentence imposed was unreasonable.

In light of Apprendi v. New Jersey, 530 U.S. 466 (2000), Flores 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 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.