United States v. Jove-Reyes , 262 F. App'x 580 ( 2008 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
January 18, 2008
No. 07-10034
Summary Calendar Charles R. Fulbruge III
Clerk
UNITED STATES OF AMERICA
Plaintiff-Appellee
v.
JUAN CARLOS JOVE-REYES
Defendant-Appellant
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 3:06-CR-91
Before JONES, Chief Judge, and HIGGINBOTHAM and CLEMENT, Circuit
Judges.
PER CURIAM:*
Juan Carlos Jove-Reyes appeals the 84-month sentence imposed following
his guilty plea conviction of illegal reentry in violation of 8 U.S.C. § 1326. He
argues that the district court erred in treating his Texas aggravated assault
conviction as a crime of violence (COV) that warranted the 16-level enhancement
of U.S.S.G. § 2L1.2(b)(1)(A)(ii) (2005). He also contends that the district court
*
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should not be published and is not precedent except under the limited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.
No. 07-10034
erred in imposing a sentence that exceeded the two year statutory maximum
found in § 1326.
In United States v. Guillen-Alvarez, 489 F.3d 197, 198-201 (5th Cir.), cert.
denied, 128 S. Ct. 418 (2007), this court held that the Texas aggravated assault
statute, TEXAS PENAL CODE § 22.02 (Vernon 2000), is substantially similar to the
definition of aggravated assault under the Model Penal Code and therefore
qualifies as the enumerated offense of aggravated assault under the Guidelines.
The statutory language at issue in Guillen-Alvarez is identical to the language
at issue in this case. Jove argues that United States v. Dominguez-Ochoa,
386 F.3d 639, 642-43 (5th Cir. 2004), in which this court held that criminally
negligent homicide under Texas law was not the equivalent of the generic offense
of manslaughter and therefore was not a COV, conflicts with Guillen-Alvarez
and should control his case. However, Dominguez-Ochoa is not dispositive of the
issue that is before this court. Guillen-Alvarez sets forth controlling authority
and resolves the arguments that Jove presents to this court. Jove’s Texas
conviction for aggravated assault thus qualifies as the enumerated offense of
aggravated assault under the Guidelines. See Guillen-Alvarez, 489 F.3d at 198-
201.
In light of Apprendi v. New Jersey, 530 U.S. 466 (2000), Jove challenges
the constitutionality of § 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).
For the foregoing reasons, the district court’s judgment is AFFIRMED.
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