IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 01-50528
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
HECTOR ORTIZ-IRIGOYEN,
Defendant-Appellant.
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Appeal from the United States District Court
for the Western District of Texas
USDC No. EP-01-CR-142-ALL-H
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December 6, 2001
Before JONES, SMITH, and EMILIO M. GARZA, Circuit Judges.
PER CURIAM:*
Hector Ortiz-Irigoyen appeals from his sentence for illegal
reentry after deportation. He argues that the district court
erred by adjusting his guideline offense level by 16 levels
pursuant to U.S.S.G. § 2L1.2 for having been deported after
commission of an aggravated felony. Relying largely on United
States v. Chapa-Garza, 243 F.3d 921 (5th Cir. 2001), Ortiz argues
that his Oregon conviction of second-degree manslaughter, OR.
REV. STAT. § 163.125(1)(a)(1999), was not an aggravated felony
because his manslaughter offense was based on an accident that
*
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that this opinion should not be published and is not precedent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. 01-50528
-2-
occurred when he was driving drunk and because the requisite mens
rea for his manslaughter offense was recklessness.
Ortiz pleaded guilty to an indictment that identified the
Oregon manslaughter conviction as an aggravated felony, and he
admitted in response to the factual resume that the conviction
was an aggravated felony. He has thus waived any challenge to
the classification of the manslaughter conviction as an
aggravated felony for sentencing purposes. See United States v.
Olano, 507 U.S. 725, 733 (1993).
Even were the issue not waived, there is no error. In
Chapa-Garza, we held that the Texas offense of felony DWI
(driving while intoxicated) did not constituted an “aggravated
felony” for purposes of U.S.S.G. § 2L1.2 and 18 U.S.C. § 16(b).
Chapa-Garza, 243 F.3d at 927. We noted in Chapa-Garza our prior
holding in United States v. Galvan-Rodriguez, 169 F.3d 217 (5th
Cir.), cert. denied, 528 U.S. 837 (1999), that unauthorized use
of a vehicle was a crime of violence. We held Galvan-Rodriguez
consistent with Chapa-Garza “as it cannot be doubted that there
is a substantial risk that physical force will be used against a
vehicle in order to obtain the unauthorized access to it that is
necessary for the commission of the offense of joyriding.”
Chapa-Garza, 243 F.3d at 927-28. Those recklessness offenses
that by their nature present a substantial risk that physical
force will be used constitute crimes of violence, as defined by
18 U.S.C. § 16(b), and therefore constitute aggravated felonies
for purposes of U.S.S.G. § 2L1.2. See Chapa-Garza, 243 F.3d at
927-28. Ortiz’s reckless second-degree manslaughter conviction,
No. 01-50528
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which resulted in the death of another person, by definition
presented a substantial risk that physical force against the
person or property of another might be used in the course of
committing the offense.
AFFIRMED.