United States v. Elizondo-De Santiago

• Court: Court of Appeals for the Fifth Circuit
• Decided: October 11, 2001
• Docket: 00-41082
• Status: Unpublished

Opinion

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 00-41082 Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

MARTIN ELIZONDO-DE SANTIAGO,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Southern District of Texas USDC No. L-00-CR-482-1 -------------------- October 10, 2001

Before JOLLY, DAVIS and DeMOSS, Circuit Judges.

PER CURIAM:*

Martin Elizondo-De Santiago appeals the 80-month sentence

imposed following his plea of guilty to the charge of illegal

reentry following deportation, a violation of 8 U.S.C.

§ 1326. Elizondo, who is represented by the Federal Public

Defender’s Office, contends that the conviction that resulted in

his increased sentence under 8 U.S.C. § 1326 was an element of

the offense that should have been charged in the indictment.

Elizondo also contends, for the first time in his reply brief on

appeal, that felony driving while intoxicated (DWI), the offense

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 00-41082 -2-

that resulted in his increased sentence, is not an aggravated

felony for purposes of

§ 1326(b) or U.S.S.G. § 2L1.2.

We held after Elizondo filed his initial appellate brief

that felony DWI in Texas is not an aggravated felony. United

States v. Chapa-Garza, 243 F.3d 921, 927 (5th Cir. 2001).

Because the Government mentioned the Chapa-Garza issue in its

appellate brief, we consider the argument Elizondo raised in his

reply brief. See Stevens v. C.I.T. Group/Equip. Fin., Inc., 955

F.2d 1023, 1026 (5th Cir. 1992)(reply brief may only respond to

issues raised in appellee’s brief).

Elizondo did not contend in the district court that felony

DWI is not an aggravated felony. We recognize that prior to

Chapa-Garza, it was not clear that a Texas felony DWI was not an

aggravated felony. Because we made clear in Chapa-Garza that a

Texas felony DWI is not an aggravated felony, the district

court’s determination otherwise was plainly erroneous. See

Johnson v. United States, 520 U.S. 461, 468 (1997)(using law at

the time of appellate determination to determine whether an error

is plain). Because calculation of Elizondo’s guideline

sentencing range is dramatically affected by Chapa-Garza, the

Chapa-Garza error in his case affected his substantial rights.

See United States v. Calverley, 37 F.3d 160, 162-64 (5th Cir.

1994)(en banc). We therefore vacate Elizondo’s sentence and

remand his case for resentencing. No. 00-41082 -3-

Elizondo concedes that his argument regarding his previous

conviction as an element of the offense is foreclosed by

Almendarez-Torres v. United States, 523 U.S. 224 (1998). He

nevertheless seeks to preserve the issue for Supreme Court review

in light of the decision in Apprendi v. New Jersey, 530 U.S. 466

(2000). Because we held in Chapa-Garza that felony DWI is not an

aggravated felony for purposes of illegal reentry, we need not

address Elizondo’s Apprendi argument.

VACATED AND REMANDED.