United States v. Ramirez-Sanchez

• Court: Court of Appeals for the Fifth Circuit
• Decided: April 9, 2001
• Docket: 00-50872
• Status: Unpublished

Opinion

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 00-50872 Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

TOMAS RAMIREZ-SANCHEZ, also known as Tomas Ramirez,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Western District of Texas USDC No. EP-00-CR-176-1-DB -------------------- April 6, 2001

Before DAVIS, JONES, and DeMOSS, Circuit Judges.

PER CURIAM:*

Tomas Ramirez-Sanchez (Ramirez) pleaded guilty to illegal

reentry of the United States after removal, a violation of 8

U.S.C. § 1326. The district court found that Ramirez had been

previously deported after an aggravated felony conviction, felony

driving while intoxicated (DWI), and increased his offense level

by sixteen levels pursuant to U.S.S.G. § 2L1.2(b)(1)(A).

Ramirez’s objections were overruled, and he was sentenced to 57

months’ imprisonment.

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 00-50872 -2-

This court reviews the district court’s interpretation of

the Sentencing Guidelines de novo and its application of the

guidelines for clear error. See United States v. Cho, 136 F.3d

982, 983 (5th Cir. 1998). A sentence must be affirmed unless it

was imposed in violation of law or was based upon an erroneous

application of the Sentencing Guidelines. See United States v.

Velazquez-Overa, 100 F.3d 418 (5th Cir. 1996).

For purposes of sentencing under U.S.S.G. § 2L1.2, an

aggravated felony is defined as a “crime of violence (as defined

in [18 U.S.C. § 16], but not including a purely political

offense) for which the term of imprisonment [is] at least one

year.” 8 U.S.C. § 1101(a)(43)(F); see U.S.S.G. § 2L1.2(b)(1)(A),

comment. (n.1). However, this court recently held that felony

DWI is not a crime of violence as defined by 18 U.S.C. § 16(b).

See United States v. Chapa-Garza, __ F.3d__ (5th Cir. Mar. 1,

2001, No. 99-51199). Therefore, Ramirez’s previous felony DWI

conviction was not an aggravated felony, and imposition of the

16-level increase pursuant to U.S.S.G. § 2L1.2(b)(1)(A) was

error.

Ramirez also argues that his felony DWI conviction was an

element of the offense that should have been charged in the

indictment. Ramirez concedes that this argument is foreclosed by

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

seeks to preserve the issue for Supreme Court review in light of

the decision in Apprendi v. New Jersey, 530 U.S. 466 (2000).

This court must follow the precedent set in Almendarez-Torres

“unless and until the Supreme Court itself determines to overrule No. 00-50872 -3-

it.” United States v. Dabeit, 231 F.3d 979, 984 (5th Cir.

2000)(internal quotation and citation omitted).

Accordingly, Ramirez’s sentence is VACATED, and this matter

is REMANDED for resentencing.