United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS May 8, 2003
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
Clerk
No. 02-51326
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
EDUARDO FELIX ESPINOZA,
Defendant-Appellant.
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Appeal from the United States District Court
for the Western District of Texas
USDC No. EP-02-CR-1169-ALL-DB
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Before DAVIS, WIENER and EMILIO M. GARZA, Circuit Judges.
PER CURIAM:*
Eduardo Felix Espinoza appeals his conviction and sentence
for attempting to reenter the United States subsequent to removal
and without the consent of the Attorney General in violation of
8 U.S.C. § 1326.
Espinoza contends that his indictment did not allege a prior
aggravated felony conviction and that he was subject to a maximum
sentence of two years under 8 U.S.C. § 1326(a). He asserts that
his forty-one-month sentence is a violation of due process and
*
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that this opinion should not be published and is not precedent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. 02-51326
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that the characterization of 8 U.S.C. § 1326(b)(2) as a sentence
enhancement provision is unconstitutional.
Espinoza acknowledges that his argument is foreclosed by the
Supreme Court’s decision in 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, 490 (2000). Apprendi did not overrule
Almendarez-Torres. Apprendi, 530 U.S. at 489-90, 496; United
States v. Dabeit, 231 F.3d 979, 984 (5th Cir. 2000).
Accordingly, Espinoza’s conviction is AFFIRMED.
Espinoza appeals his sentence on the ground that the
district court improperly classified his Colorado felony
conviction for stalking by causing emotional distress as a crime
of violence and improperly increased his base offense level by
sixteen levels pursuant to U.S.S.G. § 2L1.2(b)(1)(A). Because
Espinoza raises this issue for the first time on appeal, our
review is for plain error. United States v. Calverley, 37 F.3d
160, 162 (5th Cir. 1994) (en banc). We find plain error only if
“(1) there was an error; (2) the error was clear and obvious, and
(3) the error affected [Espinoza’s] substantial rights.” United
States v. Gracia-Cantu, 302 F.3d 308, 310 (5th Cir. 2002). If
these elements are established, we may exercise our discretion to
correct the error “only if it ‘seriously affect[s] the fairness,
integrity, or public reputation of judicial proceedings.’” Id.
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Under the applicable Sentencing Guidelines, a sixteen-level
increase is applied to the base offense level if the defendant’s
prior deportation followed a conviction for a “crime of
violence.” United States Sentencing Commission, Guidelines
Manual, § 2L1.2(b)(1)(A) (Nov. 2001). The commentary to § 2L1.2
lists certain offenses that are crimes of violence. U.S.S.G.
§ 2L1.2, comment. (n.1(B)(ii)(II)). Espinoza’s stalking offense
is not one of the enumerated offenses.
The commentary also defines a crime of violence as an
“offense under federal, state, or local law that has as an
element the use, attempted use, or threatened use of physical
force against the person of another.” U.S.S.G. § 2L1.2, comment.
(n.1(B)(ii)(I)). We do not look to the facts underlying the
stalking offense to determine whether it is a crime of violence.
United States v. Rodriguez-Rodriguez, ___ F.3d ___, 2003 WL
549186, *1 (5th Cir. Feb. 27, 2003). We look “‘only to the fact
of conviction and the statutory definition.’” Id.
Espinoza was convicted of violating COLO. REV. STAT. § 18-9-
111(4)(b)(III) (2003), which provides that a person commits
stalking if directly, or indirectly through another person, such
person knowingly:
(III) Repeatedly follows, approaches,
contacts, places under surveillance, or makes
any form of communication with another
person, a member of that person’s immediate
family, or someone with whom that person has
or has had a continuing relationship in a
manner that would cause a reasonable person
to suffer serious emotional distress and does
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cause that person, a member of that person’s
immediate family, or someone with whom that
person has or has had a continuing
relationship to suffer serious emotional
distress.
COLO. REV. STAT. § 18-9-111(4)(b)(III) (2003). The statutory
language shows and the Government concedes that Espinoza’s
offense does not include an element that contemplates proof of
the use, attempted use, or threatened use of physical force
against another person. Espinoza’s stalking conviction is not a
crime of violence under U.S.S.G. § 2L1.2(b)(1)(A), and the
addition of sixteen levels to his base offense level was clear
and obvious error. Cf. Gracia-Cantu, 302 F.3d at 313.
If the district court had not characterized Espinoza’s
stalking offense as a crime of violence and added sixteen levels
to his base offense level, Espinoza’s total offense level would
have been, at most, thirteen, and his sentencing guideline range
would have been, at most, fifteen to twenty-one months’
imprisonment. U.S.S.G. § 2L1.2(b)(1); sentencing table. The
dramatic increase in the sentence that resulted from the error
affected Espinoza’s substantial rights. Cf. Gracia-Cantu, 302
F.3d at 313. “Such a sentencing error also seriously affects the
fairness, integrity, or public reputation of the judicial
proceedings.” Id. The addition of sixteen levels to Espinoza’s
base offense level constituted plain error. Accordingly, we
VACATE Espinoza’s sentence and REMAND for resentencing.
AFFIRMED IN PART; VACATED AND REMANDED IN PART.