IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
June 15, 2009
No. 07-40225 Charles R. Fulbruge III
Clerk
UNITED STATES OF AMERICA
Plaintiff - Appellee
v.
ARMANDO ARMENDARIZ-MORENO, also known as Armando Moreno-Ortiz
Defendant - Appellant
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 1:06-CR-1029-ALL
Before REAVLEY, BARKSDALE, and GARZA, Circuit Judges.
ON REMAND FROM THE SUPREME COURT
PER CURIAM:
On December 12, 2007 this court affirmed the sentence of Armando
Armendariz-Moreno (Armendariz) and rejected the objection to the 8 level
enhancement of his offense level because of his prior conviction of unauthorized
use of a motor vehicle in violation of Texas Penal Code § 31.07(a). As Armendariz
conceded, the judgment was foreclosed by previous rulings of this circuit. See
United States v. Galvan-Rodriguez, 169 F.3d 217 (5 th Cir. 1999).
No. 07-40225
The Supreme Court has now granted certiorari and remanded for
consideration in the light of Begay v. United States, 128 S.Ct. 1581 (2008) and
Chambers v. United States, 129 S.Ct. 687 (2009). Those opinions hold that the
generic crime of violence or aggravated felony must itself involve purposeful,
violent and aggressive conduct. The risk of physical force may exist where the
defendant commits the offense of unauthorized use of a vehicle, but the crime
itself has no essential element of violent and aggressive conduct.
It follows that the Armendariz sentence rests on a procedural error. The
government agrees that the sentence must be vacated and the case remanded
for resentencing.
Sentence Vacated. Case Remanded.
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IN THE UNITED STATES COURT OF APPEALS
United States Court of Appeals
FOR THE FIFTH CIRCUIT Fifth Circuit
FILED
December 12, 2007
Charles R. Fulbruge III
No. 07-40225 Clerk
Conference Calendar
UNITED STATES OF AMERICA
Plaintiff-Appellee
v.
ARMANDO ARMENDARIZ-MORENO, also known as Armando Moreno-Ortiz
Defendant-Appellant
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 1:06-CR-1029-ALL
Before REAVLEY, BARKSDALE, and GARZA, Circuit Judges.
PER CURIAM:*
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
3
No. 07-40225
Armando Armendariz-Moreno (Armendariz) pleaded guilty to illegal
reentry after deportation and after having been convicted of an aggravated
felony.
On appeal, Armendariz challenges the district court’s characterization of
his prior Texas conviction of unauthorized use of a motor vehicle as an
aggravated felony for sentencing purposes. Armendariz concedes that this issue
is foreclosed, but he nevertheless seeks to preserve it for Supreme Court review
in light of the Supreme Court’s decision in Leocal v. Ashcroft, 543 U.S. 1 (2004).
As Armendariz concedes, this issue is foreclosed. See Brieva-Perez v. Gonzales,
482 F.3d 356, 360-61 (5th Cir. 2007); United States v. Galvan-Rodriguez, 169
F.3d 217, 219-20 (5th Cir. 1999).
In light of Apprendi v. New Jersey, 530 U.S. 466 (2000), Armendariz also
challenges the constitutionality of 8 U.S.C. § 1326(b)’s treatment of prior felony
and aggravated felony convictions as sentencing factors rather than elements of
the offense that must be found by a jury. This court has held that this issue is
“fully foreclosed from further debate.” United States v. Pineda-Arrellano, 492
F.3d 624, 625 (5th Cir. 2007), petition for cert. filed (Aug. 28, 2007) (No. 07-6202).
AFFIRMED.
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