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 2001-10

United States v. Lockwood ( 2001 )


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  •                   IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 01-50140
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
KORNELIA CHRISTINA LOCKWOOD,
also known as Kornelia Christina Haffner,
also known as Kornelia Christina Stacer,
Defendant-Appellant.
________________________________________
Appeal from the United States District Court
for the Western District of Texas
USDC No. EP-00-CR-1161-ALL-H
________________________________________
October 31, 2001
Before POLITZ, WIENER, and PARKER, Circuit Judges.
PER CURIAM:*
Kornelia Christina Lockwood appeals the 41-month term of imprisonment
imposed following her conviction of being found in the United States following
removal, in violation of
    8 U.S.C. § 1326
    . She contends that the district court erred
by increasing her offense level 16 levels pursuant to U.S.S.G. § 2L1.2(b)(1)(A)
*
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 R. 47.5, the court has determined that this opinion should not be
published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
based on her prior felony conviction of driving while intoxicated (“DWI”). She
notes that under this court’s decision in United States v. Chapa-Garza1 that a Texas
felony DWI conviction is not a “crime of violence” as defined in
    18 U.S.C. § 16
    (b)
and thus is not an aggravated felony for the purpose of a 16-level adjustment under
U.S.S.G. § 2L1.2(b)(1)(A). The Government has filed an unopposed motion to
remand for resentencing acknowledging that the district court, which did not have
the benefit of Chapa-Garza when it sentenced Lockwood, erred in applying the 16-
level adjustment. The motion is GRANTED.
Lockwood also contends that the district court erred by enhancing her
sentence based on her prior aggravated felony conviction because the fact of that
conviction was not alleged in her indictment. Lockwood’s contention is foreclosed
by Almendarez-Torres v. United States2 and is moot in light of the resolution of her
previous argument.
The Government’s motion is GRANTED, the sentence is VACATED, and
this case is REMANDED for resentencing in light of Chapa-Garza.
1
    243 F.3d 921
     (5th Cir. 2001), rehearing and rehearing en banc denied,
    262 F.3d 479
     (5th
Cir. 2001).
2
    523 U.S. 224
     (1998).
2