* 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. 05-40890

Summary Calendar

UNITED STATES OF AMERICA

Plaintiff-Appellee

v.

ALFREDO DELGADO-SALAZAR

Defendant-Appellant

Appeal from the United States District Court

for the Southern District of Texas 

USDC No. 5:05-CR-132

Before GARWOOD, WIENER, and BARKSDALE, Circuit Judges.

PER CURIAM:*

Alfredo Delgado-Salazar appeals his guilty-plea conviction and June 2005

sentence for attempted illegal reentry into the United States, in violation of 8

U.S.C. § 1326(b)(2). Delgado-Salazar argues that the district court committed

reversible error by finding that his 2003 Texas conviction for aggravated assault

(for which he was sentenced to two years’ imprisonment) was a “crime of

violence” warranting a 16-level enhancement under Sentencing Guidelines §

United States Court of Appeals

Fifth Circuit

F I L E D

October 25, 2007

Charles R. Fulbruge III

Clerk
No. 05-40890

1TheTexas indictment under which appellant was convicted and sentenced alleged that

he did “intentionally and knowingly threaten Jose Estrada with imminent bodily injury and

the defendant did use and exhibit a deadly weapon, to-wit: a knife, that in the manner of its

use and intended use was capable of causing death and serious bodily injury, during the

commission of the assault.” 

2

2L1.2(b)(1)(A)(ii).1 He contends that the Texas offense of aggravated assault

does not fall within the generic, contemporary meaning of “aggravated assault”

set forth in the Model Penal Code (MPC) or in other states’ statutes because the

Texas offense may be committed by merely threatening another with imminent

bodily injury using a deadly weapon. Delgado-Salazar also contends that the

Texas offense of aggravated assault is not a “crime of violence” because it does

not have “as an element the use, attempted use, or threatened use of physical

force against the person of another” as set forth in § 2L1.2. U.S.S.G. § 2L1.2

cmt. –1(B)(iii).

The Government asserts that, because Delgado-Salazar argued at

sentencing only that his offense was not a “16-level offense” and was “not a crime

of violence,” the specific argument he raises on appeal was not properly

preserved and that, consequently, this court’s review should be for plain error.

Although he does so in greater detail, Delgado-Salazar raises the same

argument on appeal that he raised in the district court. The argument fully

apprised the court that Delgado-Salazar was challenging the probation officer’s

determination that his offense was a “crime of violence” as defined in § 2L1.2.

See id. His objection also required the court to consider whether the elements

of the offense for which Delgado-Salazar was convicted met the requirements of

§ 2L1.2. Because Delgado-Salazar preserved his argument for appeal, this

court’s review is de novo. See UnitedStates v.Santiesteban-Hernandez, 469F.3d

376, 378 (5th Cir. 2006).

Nonetheless, Delgado-Salazar’s argumentis unavailing. Texas Penal Code

§ 22.02 defines the offense of aggravated assault in a manner that is
No. 05-40890

2

In Guillen-Alvarez appellant’s brief urged, inter alia, that the Texas aggravated

assault offense included “mere threats of bodily injury” while the Model Penal Code definition

of aggravated assault does not. 

3

substantially similar to the definition of aggravated assault set forth in the

Model Penal Code. See United States v. Guillen-Alvarez, 489 F.3d 197, 199-201

(5th Cir. 2007).2 See also, e.g., United States v. Garcia-Ramirez, 230 Fed. App’x

458 (5th Cir. 2007) (unpublished) (Texas aggravated assault conviction under

Tex. Penal Code §§ 22.02 & 22.01(a)(2), indictment alleging “threaten . . . with

imminent bodily injury and did then and there use or exhibit a deadly weapon,

to-wit: a knife . . .”; offense is crime of violence); United States v. PereiraCarballo, 230 Fed. App’x 460 (5th Cir. 2007) (unpublished) (“the generic

contemporary meaning of aggravated assault does not require that the

defendant have caused or intended to cause bodily injury”); United States v.

Molina-Cano, No. 06-40008, 5th Cir., Sept. 27, 2007 (unpublished). DelgadoSalazar’s 2003 Texas conviction for aggravated assault thus qualifies as the

enumerated offense of aggravated assault under the Guidelines. 

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

also challenges the constitutionality of section 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), pet. for cert. filed (Aug. 28, 2007) (No. 07-6202).

The judgment of the district court is

AFFIRMED.