United States v. Rangel-Mendoza

Opinion

UNITED STATES COURT OF APPEALS For the Fifth Circuit

No. 00-40561 Conference Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

VERSUS

GULMARO RANGEL-MENDOZA,

Defendant-Appellant,

Appeal from the United States District Court for the Southern District of Texas V-99-CR-72

October 1, 2001

Before DAVIS, STEWART and PARKER, Circuit Judges.*

PER CURIAM:

Appellant, Gulmaro Rangel-Mendoza, filed this motion

requesting that we recall our mandate pursuant to Rule 41.2 of the

Fifth Circuit Rules. Under Rule 41.2 of the Fifth Circuit Rules,

we may recall our mandate if necessary to prevent injustice. An

example of such an injustice is when a subsequent decision by the

* 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 R. 47.5, the Court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. Supreme Court or this court renders a previous appellate decision

demonstrably wrong. See United States v. Tolliver, 116 F.3d 120,

123-24 (5th Cir. 1997); Burton v. United States, 237 F.3d 490, 490-

91 (5th Cir. 2000).

In December 2000, we affirmed Rangel-Mendoza’s conviction for

being found in the United States after deportation, a violation of

8 U.S.C. § 1326(a). Rangel-Mendoza’s base offense level was eight,

but that was enhanced by a sixteen level enhancement based upon

prior “aggravated felony” convictions. The convictions upon which

this determination was based were two Texas felony DWI convictions.

On March 1, 2001, this court decided United States v. Chapa-Garza,

243 F.3d 921 (5th Cir. 2001), holding that a Texas felony DWI

conviction did not constitute an “aggravated felony” under U.S.S.G.

§ 2L1.2(b)(1)(A) and 8 U.S.C. § 1326(b)2. The Government’s

Application for Rehearing and Rehearing En Banc was denied on

August 20, 2001. United States v. Chapa-Garza, No. 99-51199, No.

00-50049, No. 00-50051, No. 00-50107, No. 00-50239, 2001 U.S. App.

LEXIS 18779 (5th Cir. Aug. 20, 2001).

At the time defendant was sentenced, binding Fifth Circuit

precedent held that a Texas felony DWI conviction was an

“aggravated felony” under 8 U.S.C. § 1101(a)(43)(F). See Camacho-

Marroquin v. INS, 188 F.3d 649 (5th Cir. 1999). Although this

opinion was withdrawn on July 11, 2000, Camacho-Marroquin v. INS,

222 F.3d 1040 (5th Cir. 2000), the district court was bound by this

2 decision at the time of sentencing. Also, this precedent excused

Rangel-Mendoza from arguing to the sentencing judge that his felony

DWI conviction was not an “aggravated felony.” Although Rangel-

Mendoza filed his Fifth Circuit brief one month after Camacho-

Marroquin was withdrawn, he had no basis to raise the issue that

his felony DWI convictions did not qualify as aggravated felonies

because he had not raised that issue in the district court.

We conclude that in the interest of justice, Rangel-Mendoza

should be permitted to benefit from this court’s decision in Chapa-

Garza. Accordingly, appellant’s motion requesting that this court

recall its mandate is granted. Rangel-Mendoza’s sentence is

vacated and this case is remanded to the district court so that the

district court can resentence Rangel-Mendoza in light of Chapa-

Garza.

VACATED and REMANDED.