IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 02-40272
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JUSTINO ALANIZ-GARCIA,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. B-01-CR-480-1
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March 7, 2003
Before JOLLY, JONES, and EMILIO M. GARZA, Circuit Judges.
PER CURIAM:*
Justino Alaniz-Garcia pleaded guilty to an indictment
charging him with illegal reentry following deportation in
violation of 8 U.S.C. § 1326(a) & (b). Alaniz has appealed his
sentence.
Alaniz argues that the sentence-enhancing provisions of
8 U.S.C. § 1326(b) are unconstitutional in light of Apprendi v.
New Jersey, 530 U.S. 466 (2000). Alaniz concedes that his
argument is foreclosed by Almendarez-Torres v. United States, 523
*
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this opinion should not be published and is not precedent except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. 02-40272
-2-
U.S. 224 (1998). See United States v. Dabeit, 231 F.3d 979, 984
(5th Cir. 2000), cert. denied, 531 U.S. 1202 (2001). He seeks to
preserve the issue for Supreme Court review.
Alaniz contends also that the district court erred by
concluding that his prior conviction for reckless bodily injury
to a child, see TEX. PENAL CODE ANN. § 22.04(a)(3) & (f) (West
1994), was a “crime of violence” under U.S.S.G. § 2L1.2(b)(1)(A)
(2001). We vacate the sentence and remand for resentencing in
light of United States v. Gracia-Cantu, 302 F.3d 308, 310-13 (5th
Cir. 2002).
VACATE AND REMAND.