United States v. Vela-Ornelas ( 2001 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 00-51146
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JULIO CESAR VELA-ORNELAS,
Defendant-Appellant.
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Appeal from the United States District Court
for the Western District of Texas
USDC No. EP-00-CR-885-1-H
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November 8, 2001
Before JONES, SMITH, and EMILIO M. GARZA, Circuit Judges.
PER CURIAM:*
Julio Cesar Vela-Ornelas appeals the 46-month term of
imprisonment imposed following his guilty plea 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 pursuant to this court’s
decision in United States v. Chapa-Garza, 243 F.3d 921, 927 (5th
Cir. 2001), rehearing and rehearing en banc denied, 262 F.3d 479
*
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that this opinion should not be published and is not precedent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. 00-51146
-2-
(5th Cir. 2001), 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 Vela-Ornelas, erred in applying the 16-level
adjustment.
The Government’s motion to remand is GRANTED, the sentence
is VACATED, and this case is REMANDED for resentencing in light
of Chapa-Garza. The motion to expedite is DENIED.