United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT April 7, 2004
Charles R. Fulbruge III
Clerk
No. 03-40245
Summary Calendar
UNITED STATES OF AMERICA
Plaintiff - Appellee
v.
DAVID GARCIA-JUAREZ
Defendant - Appellant
--------------------
Appeal from the United States District Court
for the Southern District of Texas
USDC No. L-02-CR-1138-ALL
--------------------
Before KING, Chief Judge, and HIGGINBOTHAM and WIENER, Circuit
Judges.
PER CURIAM:*
David Garcia-Juarez appeals from his conviction of illegal
reentry following deportation. Garcia contends, for the first
time on appeal, that his sentence violated the relevant statutory
maximum of 8 U.S.C. § 1326(a) and that the district court erred
by imposing the 16-level crime-of-violence adjustment of U.S.S.G.
§ 2L1.2(b)(1)(A)(ii) because he was not actually convicted of
assault with a deadly weapon in Minnesota in 2000. He also
contends, for the first time on appeal, that the “felony” 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that this opinion should not be published and is not precedent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. 03-40245
-2-
“aggravated felony” provisions of 8 U.S.C. § 1326(b) are
unconstitutional in light of Apprendi v. New Jersey, 530 U.S. 466
(2000).
A sentence that exceeds the statutory maximum is illegal and
constitutes plain error. United States v. Sias, 227 F.3d 244,
246 (5th Cir. 2000). Garcia was deported before his scheduled
sentencing date in Minnesota, and he has never been sentenced on
his Minnesota guilty plea. He was never formally adjudicated
guilty in Minnesota. See State v. Hoelzel, 639 N.W.2d 605, 609
(Minn. 2002). Garcia was not convicted in Minnesota for federal
immigration law purposes. See Moosa v. INS, 171 F.3d 994, 1001-
02 (5th Cir. 1999). As the government concedes, the district
court therefore erred by imposing the 16-level adjustment and by
sentencing Garcia to more than two years’ imprisonment. Because
the district court erred by sentencing Garcia under the
“aggravated felony” provision of 8 U.S.C. § 1326(b), we do not
reach the issue, raised for the first time on appeal, of the
constitutionality of 8 U.S.C. § 1326(b).
VACATED AND REMANDED.