IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 00-50650
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
DANIEL RUIZ-VEGA,
Defendant-Appellant.
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Appeal from the United States District Court
for the Western District of Texas
USDC No. DR-99-CR-137-1
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October 31, 2001
Before DAVIS, BENAVIDES, and STEWART, Circuit Judges.
PER CURIAM:*
Daniel Ruiz-Vega (Ruiz) pleaded guilty to illegal reentry
into the United States after removal, a violation of 8 U.S.C.
§ 1326. Ruiz’s offense level was enhanced 16 levels pursuant to
U.S.S.G. § 2L1.2(b)(1)(A) based on a Texas felony
driving-while-intoxicated (DWI) conviction, which was
characterized as an aggravated felony. The district court
sentenced Ruiz to 77 months’ imprisonment.
Ruiz contends that his prior DWI conviction that resulted in
his increased sentence under 8 U.S.C. § 1326(b)(2) was an element
*
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that this opinion should not be published and is not precedent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. 00-50650
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of the offense that should have been charged in the indictment.
He acknowledges that his argument is foreclosed by
Almendarez-Torres v. United States, 523 U.S. 224 (1998), but 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).
Apprendi did not overrule Almendarez-Torres. See Apprendi, 530
U.S. at 489-90; United States v. Dabeit, 231 F.3d 979, 984 (5th
Cir. 2000), cert. denied, 121 S. Ct. 1214 (2001). Ruiz’s
argument is foreclosed.
Ruiz argues that the district court erred by applying the
16-level enhancement because his prior felony DWI conviction is
not an aggravated felony. Because Ruiz raises this issue for the
first time on appeal, we review for plain error. United States
v. Calverley, 37 F.3d 160, 162 (5th Cir. 1994) (en banc); see
United States v. Olano, 507 U.S. 725, 730-36 (1993).
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’s error in applying
the 16-level enhancement was plain and affected Ruiz’s
substantial rights. Because Ruiz’s sentencing range would be
reduced substantially without the 16-level enhancement, we
exercise our discretion to correct this error. See United States
v. Miranda, 248 F.3d 434, 445 (5th Cir. 2001). Accordingly,
Ruiz’s sentence is VACATED, and this matter is REMANDED for
resentencing.
No. 00-50650
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Finally, Ruiz argues that the district court erred in
denying him a downward departure based on his cultural
assimilation into this country in the mistaken belief that it
lacked the authority to depart. "[C]ultural assimilation is a
permissible basis for downward departure." United States v.
Rodriguez-Montelongo, ___ F.3d ___ (5th Cir. Aug 23, 2001, No.
00-51023), 2001 WL 958907, *4. The district court’s declaration
that it lacked authority to depart based on the theory of
cultural assimilation is erroneous. On remand the district court
should consider wether Ruiz is entitled to a downward departure
on the basis of cultural assimilation.
VACATED AND REMANDED.