IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 01-20047
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JOSE LUIS VARGAS, also known as Jose Luis Vargas-Gonzalez,
also known as Jose Vargas-Vargas, also known as
Jose Jesus Vargas,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. H-00-CR-328-ALL
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October 18, 2001
Before REAVLEY, HIGGINBOTHAM and WIENER, Circuit Judges.
PER CURIAM:*
Jose Luis Vargas (Vargas) has appealed his conviction based
on a guilty plea to illegal reentry into the United States after
removal, a violation of 8 U.S.C. § 1326. Vargas’s guideline
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 determined to be an
aggravated felony. The district court sentenced Vargas to 80
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that this opinion should not be published and is not precedent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. 01-20047
-2-
Vargas contends that the district court erred by applying
the 16-level enhancement because his prior felony DWI conviction
is not an aggravated felony. Because Vargas raises this issue
for the first time on appeal, we review for plain error. See
United States v. Calverley, 37 F.3d 160, 162 (5th Cir. 1994) (en
banc); 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, 927-28
(5th Cir. 2001) (decided after the district court sentenced
Vargas). Therefore, the district court’s error in applying the
16-level enhancement was plain and affected Vargas’s substantial
rights. Because Vargas’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.), petition for cert. filed (U.S.
Sept. 6, 2001) (No. 01-6235). Accordingly, Vargas’s sentence is
VACATED and this cause is REMANDED for resentencing.
Vargas contends that his prior DWI conviction that resulted
in his increased sentence under 8 U.S.C. § 1326(b)(2) was an
element 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
No. 01-20047
-3-
U.S. at 489-90; United States v. Dabeit, 231 F.3d 979, 984 (5th
Cir. 2000), cert. denied, 121 S. Ct. 1214 (2001). Vargas’s
contention is moot in light of the disposition we make of his
appeal.
SENTENCE VACATED; REMANDED.
United States v. Vargas
Combined Opinion