IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 00-50421
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
BIVIANO AGUINAGA-JUAREZ, also known
as Agiunaga Viviano Juarez, also
known as Agiunaga Juarez, also known
as Viviano Aginga, also known as
Viviano Aguinaga-Juarez,
Defendant-Appellant.
--------------------
Appeal from the United States District Court
for the Western District of Texas
USDC No. SA-99-CR-449-1-FB
--------------------
October 11, 2001
Before DAVIS, BENAVIDES, and STEWART, Circuit Judges.
PER CURIAM:*
Biviano Aguinaga-Juarez pleaded guilty to illegal reentry of
the United States after removal, a violation of 8 U.S.C. § 1326.
Aguinaga-Juarez’s offense level was enhanced 16 levels pursuant
to U.S.S.G. § 2L1.2(b)(1)(A) based on his Texas felony driving-
while-intoxicated (“DWI”) conviction, which was characterized as
an aggravated felony. The district court sentenced Aguinaga-
*
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that this opinion should not be published and is not precedent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. 00-50421
-2-
Juarez to 70 months’ imprisonment and three years’ supervised release.
Aguinaga-Juarez avers first that under the plain language of
8 U.S.C. § 1231(a)(5), which provides that a prior order of
removal may be “reinstated from its original date,” the date of
his deportation was 1997. Therefore, Aguinaga-Juarez contends
that the district court erred in imposing the 8 U.S.C.
§ 1326(b)(2) enhancement because his removal would not have been
subsequent to his 1999 DWI conviction. Aguinaga-Juarez also
argues that any ambiguity in 8 U.S.C. § 1231(a)(5) should be
construed in his favor in accordance with the rule of lenity.
Aguinaga-Juarez’s argument is foreclosed by this court’s
decision in United States v. Nava-Perez, 242 F.3d 277 (5th Cir.),
cert. denied, 121 S. Ct. 2537 (2001). In Nava-Perez, this court
held that when two removals are based on the same order, with the
subsequent removal based on the order’s reinstatement, they are
nevertheless separate removals. Id. at 279. If, as is the case
here, an alien is convicted of a felony prior to the second
removal, he qualifies for 8 U.S.C. § 1326(b)(2)’s penalty
enhancement. Id.
Aguinaga-Juarez argues for the first time on appeal that a
prior felony conviction is an element of the offense of illegal
reentry following deportation and that his indictment was
defective because it did not allege a prior felony conviction.
Aguinaga-Juarez concedes that his argument is foreclosed by
United States v. Almendarez-Torres, 523 U.S. 224 (1998).
Aguinaga-Juarez contends, however, that Apprendi v. New Jersey,
No. 00-50421
-3-
530 U.S. 466 (2000), casts doubt on Almendarez-Torres and that he
is raising the argument to preserve it for Supreme Court review.
Apprendi did not overrule Almendarez-Torres. See Apprendi,
530 U.S. at 489-90; see also United States v. Dabeit, 231 F.3d
979, 984 (5th Cir. 2000)(noting that the Supreme Court in
Apprendi expressly declined to overrule Almendarez-Torres),
cert. denied, 121 S. Ct. 1214 (2001). This court must therefore
follow the precedent set in Almendarez-Torres “unless and until
the Supreme Court itself determines to overrule it.” Dabeit, 231
F.3d at 984 (internal quotation marks and citation omitted); see
also Nava-Perez, 242 F.3d at 279.
Aguinaga-Juarez argues that the district court erred by
increasing his offense level by 16 levels under U.S.S.G.
§ 2L1.2(b)(1)(A) because his prior Texas felony conviction for
DWI is not an aggravated felony. This court conducts a de novo
review of a district court’s application of the guidelines.
United States v. DeSantiago-Gonzalez, 207 F.3d 261, 263 (5th Cir.
2000).
A Texas felony DWI conviction is not a “crime of violence”
as defined in 18 U.S.C. § 16 and thus is not an aggravated felony
for the purpose of a U.S.S.G. § 2L1.2(b)(1)(A) 16-level
enhancement. United States v. Chapa-Garza, 243 F.3d 921, 927
(5th Cir. 2001). Thus, the district court committed error by
increasing Aguinaga-Juarez’s offense level by 16 levels for his
Texas felony DWI conviction. Accordingly, Aguinaga-Juarez’s
sentence is VACATED, and this matter is REMANDED for
resentencing.