United States v. Flores-Meza ( 2001 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 01-50024
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
FRANCISCO FLORES-MEZA,
Defendant-Appellant.
__________________________________________
Appeal from the United States District Court
for the Western District of Texas
USDC No. EP-00-CR-1002-ALL-H
_________________________________________
October 31, 2001
Before POLITZ, WIENER, and PARKER, Circuit Judges.
PER CURIAM:*
Francisco Flores-Meza appeals the 46-month term of imprisonment imposed
following his conviction of being found in the United States following removal, in
violation of 8 U.S.C. § 1326. He contends that the district court erred by increasing
his offense level 16 levels pursuant to U.S.S.G. § 2L1.2(b)(1)(A) based on his prior
felony conviction of driving while intoxicated (“DWI”). He notes that under this
*
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 R. 47.5, the court has determined that this opinion should not be
published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
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 Flores-Meza, erred in applying the 16-level
adjustment. The motion is GRANTED.
Flores-Meza also maintains that the district court erred by enhancing his
sentence based on his prior aggravated felony conviction because the fact of that
conviction was not alleged in his indictment nor proved beyond a reasonable doubt.
Flores-Meza’s contention is foreclosed by Almendarez-Torres v. United States2 and
is moot in light of the resolution of his previous argument.
The Government’s motion to remand 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