United States v. Vara-Olvera ( 2001 )

UNITED STATES COURT OF APPEALS
FIFTH CIRCUIT
_________________
No. 00-51159
(Summary Calendar)
_________________
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
JESUS VARA-OLVERA,
Defendant - Appellant.
Appeal from the United States District Court
For the Western District of Texas
USDC No. A-00-CR-80-ALL-JN
November 29, 2001
Before JONES, SMITH and EMILIO M. GARZA, Circuit Judges.
PER CURIAM:*
Jesus Vara-Olvera appeals his sentence following his guilty-plea conviction for illegal reentry
into the United States. The dist rict court determined that Vara-Olvera’s offense level should be
increased by sixteen points pursuant to U.S. SENTENCING GUIDELINES MANUAL § 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
(2001) due to his prior felony DWI conviction. The Government has filed an unopposed motion to
remand for sentencing pursuant to this court’s decision in United States v. Chapa-Garza, 243 F.3d
921 (5th Cir. 2001), rehearing and rehearing en banc denied, 262 F.3d 479 (5th Cir. 2001).
In Chapa-Garza, we held that a Texas felony conviction is not a “crime of violence” as
defined in 18 U.S.C. § 16 and thus is not an aggravated felony for the purpose of U.S.S.G. §
2L1.2(b)(1)(A)’s 16-level enhancement. Id. at 927. Therefore, the district court, which did not have
the benefit of our decision in Chapa-Garza when it sentenced Vara-Olvera, erred in applying the 16-
level enhancement.
The Government’s motion is GRANTED, the sentence is VACATED, and this case is
REMANDED for resentencing in light of Chapa-Garza.
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