United States v. Gonzalez-Flores
228 F. App'x 491
5th Cir.
2007
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Docket

*1 Before DAVIS, BARKSDALE and BENAVIDES, Circuit Judges.

PER CURIAM: [*]

Alejandro Gonzalez-Flores (Gonzalez) appeals his guilty plea conviction and sentence for illegal reentry. He argues that his Georgia aggravated assault conviction did not constitute a “crime of violence” under U.S.S.G. § 2L1.2(b)(1)(A)(ii) and that the felony and aggravated felony provisions of 8 U.S.C. § 1326(b)(1), (2) are unconstitutional in light of Apprendi v. New Jersey, 530 U.S. 466 (2000).

*2 No. 05-41165

-2- Using a “common sense approach,” we hold that the generic, contemporary meaning of the offense of aggravated assault includes the intentionally-caused apprehension of injury, 2 W.R. LaFave & A. Scott, Substantive Criminal Law, § 16.3 (2d ed. 2005), and that Gonzalez’s Georgia offense falls within that generic, contemporary meaning. United States v. Santiesteban- Hernandez, 469 F.3d 376, 378-79 (5th Cir. 2006); United States v. Sanchez-Ruedas, 452 F.3d 409, 411, 414 (5th Cir.), cert. denied, 127 S. Ct. 315 (2006). We therefore hold that the crime-of- violence enhancement was warranted.

Gonzalez’s constitutional challenge is foreclosed by Almendarez-Torres v. United States, 523 U.S. 224, 235 (1998). Although Gonzalez contends that Almendarez-Torres was incorrectly decided and that a majority of the Supreme Court would overrule Almendarez-Torres in light of Apprendi, we have repeatedly rejected such arguments on the basis that Almendarez-Torres remains binding. See United States v. Garza-Lopez, 410 F.3d 268, 276 (5th Cir.), cert. denied, 126 S. Ct. 298 (2005). Gonzalez properly concedes that his argument is foreclosed in light of Almendarez-Torres and circuit precedent, but he raises it here to preserve it for further review.

AFFIRMED.

Notes

[*] Pursuant to 5 TH C IR . R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5 TH C IR . R. 47.5.4.