IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 00-50082
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JOSE MAURO PUENTES,
Defendant-Appellant.
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Appeal from the United States District Court
for the Western District of Texas
USDC No. EP-99-CR-1194-ALL-H
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November 1, 2001
Before JONES, SMITH, and EMILIO M. GARZA, Circuit Judges.
PER CURIAM:*
Jose Mauro Puentes appeals his sentence following his
conviction for illegal reentry into the United States after
deportation. Puentes contends that the district court erred in
applying the 16-level sentencing enhancement pursuant to U.S.S.G.
§ 2L1.2(b)(1)(A), as his pre-deportation Arizona felony
conviction for aggravated driving while intoxicated (“DWI”) does
not constitute a crime of violence under 18 U.S.C. § 16. He
further asserts that his felony DWI conviction was an element of
the offense that should have been charged in the indictment,
*
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that this opinion should not be published and is not precedent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. 00-50082
-2-
although he concedes that that argument is foreclosed by
Almendarez-Torres v. United States, 523 U.S. 224 (1998).
Because an intentional use of force is virtually never
employed to commit the 1992 version of the Arizona felony offense
of aggravated DWI, the offense is not a crime of violence as
defined by 18 U.S.C. § 16(b). See Ariz. Rev. Stat. Ann. § 28-
697(A) (West 1992); United States v. Chapa-Garza, 243 F.3d 921,
927 (5th Cir. 2001) (holding that the Texas felony offense of DWI
is not a crime of violence). Therefore, Puentes’ pre-deportation
Arizona aggravated DWI conviction is not an aggravated felony
conviction under U.S.S.G. § 2L1.2(b)(1)(A), and the district
court erred in applying the 16-level sentencing enhancement. See
Chapa-Garza, 243 F.3d at 923-24. Puentes’ sentence is VACATED,
and this case is REMANDED for resentencing.