United States v. Montoya-Rubio , 81 F. App'x 817 ( 2003 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT November 21, 2003
Charles R. Fulbruge III
Clerk
No. 03-40618
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JOSE MONTOYA-RUBIO,
Defendant-Appellant.
--------------------
Appeal from the United States District Court
for the Southern District of Texas
USDC No. B-02-CR-500-1
--------------------
Before HIGGINBOTHAM, DAVIS, and PRADO, Circuit Judges.
PER CURIAM:*
Jose Montoya-Rubio (Montoya) appeals his sentence following
his guilty plea conviction for being found in the United States
after deportation. He contends that the district court plainly
erred in imposing a 16-level enhancement at sentencing under
U.S.S.G. § 2L1.2(b)(1)(A)(ii), based on his prior conviction for
felony robbery, a crime of violence. We agree.
The guideline requires that the defendant must have been
deported after the felony or that he remained in the United States
*
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that this opinion should not be published and is not precedent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.
in contravention of a remand order issued after the conviction.
Montoya was deported in November 1999; he was placed on deferred
adjudication for the robbery in August 2000 and was adjudicated
guilty in February 2002. Accordingly, he was not deported after
the felony and he did not remain in the United States in
contravention of a remand order issued after the conviction. As
the government concedes, these circumstances make Montoya
ineligible for the 16-level enhancement and his sentence
constitutes plain error.1 Consequently, the sentence imposed by
the district court is VACATED and the case is REMANDED for
resentencing.
Montoya also asserts for the first time on appeal that 8
U.S.C. § 1326(b) is unconstitutional in light of Apprendi v. New
Jersey.2 In light of the recommended remand, this issue is
arguably moot. Moreover, as Montoya concedes, his argument is
foreclosed by Almendarez-Torres v. United States,3 but he raises
the issue to preserve it for Supreme Court review.4 The judgment
of the district court is AFFIRMED as to this ground.
1
See United States v. Alarcon, 261 F.3d 416, 423 (5th Cir.
2001), cert. denied, 534 U.S. 1099 (2002).
2
530 U.S. 466 (2000).
3
523 U.S. 224 (1998).
4
See United States v. Dabeit, 231 F.3d 979, 984 (5th Cir.
2000).
2