IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 00-50872
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
TOMAS RAMIREZ-SANCHEZ, also known as Tomas Ramirez,
Defendant-Appellant.
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Appeal from the United States District Court
for the Western District of Texas
USDC No. EP-00-CR-176-1-DB
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April 6, 2001
Before DAVIS, JONES, and DeMOSS, Circuit Judges.
PER CURIAM:*
Tomas Ramirez-Sanchez (Ramirez) pleaded guilty to illegal
reentry of the United States after removal, a violation of 8
U.S.C. § 1326. The district court found that Ramirez had been
previously deported after an aggravated felony conviction, felony
driving while intoxicated (DWI), and increased his offense level
by sixteen levels pursuant to U.S.S.G. § 2L1.2(b)(1)(A).
Ramirez’s objections were overruled, and he was sentenced to 57
months’ imprisonment.
*
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that this opinion should not be published and is not precedent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. 00-50872
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This court reviews the district court’s interpretation of
the Sentencing Guidelines de novo and its application of the
guidelines for clear error. See United States v. Cho, 136 F.3d
982, 983 (5th Cir. 1998). A sentence must be affirmed unless it
was imposed in violation of law or was based upon an erroneous
application of the Sentencing Guidelines. See United States v.
Velazquez-Overa, 100 F.3d 418 (5th Cir. 1996).
For purposes of sentencing under U.S.S.G. § 2L1.2, an
aggravated felony is defined as a “crime of violence (as defined
in [18 U.S.C. § 16], but not including a purely political
offense) for which the term of imprisonment [is] at least one
year.” 8 U.S.C. § 1101(a)(43)(F); see U.S.S.G. § 2L1.2(b)(1)(A),
comment. (n.1). However, this court recently held that felony
DWI is not a crime of violence as defined by 18 U.S.C. § 16(b).
See United States v. Chapa-Garza, __ F.3d__ (5th Cir. Mar. 1,
2001, No. 99-51199). Therefore, Ramirez’s previous felony DWI
conviction was not an aggravated felony, and imposition of the
16-level increase pursuant to U.S.S.G. § 2L1.2(b)(1)(A) was
error.
Ramirez also argues that his felony DWI conviction was an
element of the offense that should have been charged in the
indictment. Ramirez concedes that this argument is foreclosed by
Almendarez-Torres v. United States, 523 U.S. 224 (1998). He
seeks to preserve the issue for Supreme Court review in light of
the decision in Apprendi v. New Jersey, 530 U.S. 466 (2000).
This court must follow the precedent set in Almendarez-Torres
“unless and until the Supreme Court itself determines to overrule
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it.” United States v. Dabeit, 231 F.3d 979, 984 (5th Cir.
2000)(internal quotation and citation omitted).
Accordingly, Ramirez’s sentence is VACATED, and this matter
is REMANDED for resentencing.