*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this opinion should not be published and is not precedent except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.

United States Court of Appeals

Fifth Circuit

FILED

June 11, 2007

Charles R. Fulbruge III

Clerk

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_____________________

No. 06-41256

_____________________

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

versus

ANGELINO GARCIA-RAMIREZ,

Defendant - 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.

PER CURIAM:*

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
2

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, No. 05-41787, slip

op. (5th Cir. June 6, 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 *4. But there, unlike the

facts before us, the charging documents provided insufficient

details for us to determine the subsection of Texas Penal Code §
3

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, No. 06-40273, 2007 WL 1127859 (5th Cir.

Apr. 17, 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 *7. 

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, 239-47 (1998), it

fails.

III.

For the foregoing reasons, Garcia-Ramirez’s sentence is

AFFIRMED.