IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 00-20611
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JOSÉ LUIS PARRA-TELLEZ,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. H-99-CR-661-1
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February 28, 2002
Before JOLLY, HIGGINBOTHAM, and JONES, Circuit Judges.
PER CURIAM:*
José Luis Parra-Tellez (Parra) has filed a motion requesting
that this court recall its mandate in the case, vacate his
57-month sentence, and remand the case to the district court for
resentencing in light of United States v. Chapa-Garza, 243 F.3d
921 (5th Cir. 2001). Parra’s 57-month sentence included a
16-level increase under U.S.S.G. § 2L1.2(b)(1)(A) because he
previously was deported after a Texas conviction for felony
driving while intoxicated (DWI). At the time of Parra’s
*
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that this opinion should not be published and is not precedent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. 00-20611
-2-
sentencing, his felony DWI conviction was properly classified as
an “aggravated felony” conviction because this court, in an
opinion which was later withdrawn, held that the offense was a
“crime of violence.” See Camacho-Marroquin v. INS, 188 F.3d 649,
652 (5th Cir. 1999), op. withdrawn, 222 F.3d 1040 (5th Cir.
2000); see also 8 U.S.C. § 1101(a)(43)(F)(defining “aggravated
felony,” among other things, as a crime of violence for which
imprisonment term was at least one year). Prior to the
disposition of Parra’s appeal but after the filing of the
parties’ appellate briefs, this court decided Chapa-Garza,
wherein we held that Texas felony DWI is not a “crime of
violence” under 18 U.S.C. § 16(b) and, therefore, is not an
“aggravated felony” for sentence-enhancement purposes under
U.S.S.G. § 2L1.2(b)(1)(A). Chapa-Garza, 243 F.3d at 923-28.
Affording Parra the benefit of Chapa-Garza would result in a
greatly reduced sentence. Accordingly, in the interests of
justice, we GRANT Parra’s motion to recall the mandate, VACATE
his sentence, and REMAND the case to the district court for
resentencing in light of Chapa-Garza. See 5TH CIR. R. 41.2.
MOTION GRANTED; VACATED AND REMANDED.