United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT June 1, 2004
Charles R. Fulbruge III
Clerk
No. 03-40613
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
FRANCISCO JAVIER HERNANDEZ-ORTIZ,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. B-02-CR-752-ALL
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Before BARKSDALE, EMILIO M. GARZA, and DENNIS, Circuit Judges.
PER CURIAM:*
Francisco Hernandez-Ortiz appeals his sentence following his
guilty plea conviction for being present in the United States after
having been deported following an aggravated felony conviction. 8
U.S.C. § 1326. He argues that the district court erred when it
increased his offense level by 16 based upon his prior state
assault conviction, which he contends was not punishable by a term
of imprisonment over one year and was thus not a felony crime of
violence under Sentencing Guideline § 2L1.2(b)(1)(A)(ii). He
*
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that this opinion should not be published and is not precedent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. 03-40613
-2-
contends that his trial attorney was ineffective in not raising
this issue in the district court and that the waiver-of-appeal
provision in the plea agreement thus does not prevent review of his
sentencing claim.
Hernandez-Ortiz also contends that his state assault
conviction should have been considered as an essential element of
the offense of illegal reentry and that the district court should
have determined beyond a reasonable doubt that Hernandez-Ortiz had
been convicted of an aggravated felony before adjusting his
sentence accordingly. As he acknowledges, this argument is
foreclosed by Almendarez-Torres v. United States, 523 U.S. 224
(1998), and United States v. Dabeit, 231 F.3d 979, 984 (5th Cir.
2000). Almendarez-Torres was not overruled by Apprendi v. New
Jersey, 530 U.S. 466 (2000). See Dabeit, 231 F.3d at 984. We
AFFIRM Hernandez-Ortiz’s conviction.
Given the Government’s election not to enforce the plea
agreement and the plea agreement’s vagueness with allowing an
appeal of an illegal sentence, Hernandez-Ortiz’s waiver of appeal
provision does not prevent us from reviewing the merits of his
challenge to his sentence. See United States v. Rhodes, 253 F.3d
800, 804 (5th Cir. 2001); United States v. Somner, 127 F.3d 405,
407 (5th Cir. 1997).
The government agrees with Hernandez-Ortiz that the 16-level
enhancement under Sentencing Guideline § 2L1.2(b)(1)(A)(ii) was
inappropriate and argues instead that an 8-level enhancement is
No. 03-40613
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appropriate under Sentencing Guideline § 2L1.2(b)(1)(C). As the
government agrees with Hernandez-Ortiz that the 16-level sentence
enhancement was inappropriate, Hernandez-Ortiz’s sentence is
VACATED; the case is REMANDED for a determination as to the
propriety of the 8-level enhancement argued for by the government;
and the district court should then RESENTENCE Hernandez-Ortiz
accordingly.
CONVICTION AFFIRMED; SENTENCE VACATED; REMANDED FOR
RESENTENCING IN ACCORDANCE WITH THIS OPINION.