Opinion
No. 07-40225.
June 15, 2009.
Paula Camille Offenhauser, James Lee Turner, Asst. U.S. Attorneys, Houston, TX, for Plaintiff-Appellee.
Marjorie A. Meyers, Timoteo E. Gomez, Fed. Pub. Defenders, Laura Fletcher Leavitt, Asst. Fed. Pub. Def., Houston, TX, for Defendant-Appellant.
Appeal from the United States District Court for the Southern District of Texas.
Before REAVLEY, BARKSDALE and GARZA, Circuit Judges.
ON REMAND FROM THE SUPREME COURT
On December 12, 2007 this court affirmed the sentence of Armando Armendariz-Moreno (Armendariz) and rejected the objection to the 8 level enhancement of his offense level because of his prior conviction of unauthorized use of a motor vehicle in violation of Texas Penal Code § 31.07(a). (See Attached). As Armendariz conceded, the judgment was foreclosed by previous rulings of this circuit. See United States v. Galvan-Rodriguez, 169 F.3d 217 (5th Cir. 1999).
The Supreme Court has now granted certiorari and remanded for consideration in the light of Begay v. United States, ___ U.S. ___, 128 S.Ct. 1581, 170 L.Ed.2d 490 (2008) and Chambers v. United States, ___ U.S. ___, 129 S.Ct. 687, 172 L.Ed.2d 484 (2009). Those opinions hold that the generic crime of violence or aggravated felony must itself involve purposeful, violent and aggressive conduct. The risk of physical force may exist where the defendant commits the offense of unauthorized use of a vehicle, but the crime itself has no essential element of violent and aggressive conduct.
It follows that the Armendariz sentence rests on a procedural error. The government agrees that the sentence must be vacated and the case remanded for resentencing.
Sentence Vacated. Case Remanded.
APPENDIX
IN THE UNITED STATES COURT OF
APPEALS
FOR THE FIFTH CIRCUIT
UNITED STATES of America, Plaintiff-Appellee,
v.
Armando ARMENDARIZ-MORENO, also known as Armando Moreno-Ortiz, Defendant-Appellant.
APPENDIX — Continued No. 07-40225 Conference Calendar. Dec. 12, 2007.
Appeal from the United States District
Court
for the Southern District of Texas. USDC No. 1:06-CR-1029-ALL.
Before REAVLEY, BARKSDALE and GARZA, Circuit Judges.
Pursuant to 5TH OR R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH OR . R. 47.5.4.
Armando Armendariz-Moreno (Armendariz) pleaded guilty to illegal reentry after deportation and after having been convicted of an aggravated felony.
On appeal, Armendariz challenges the district court's characterization of his prior Texas conviction of unauthorized use of a motor vehicle as an aggravated felony for sentencing purposes. Armendariz concedes that this issue is foreclosed, but he nevertheless seeks to preserve it for Supreme Court review in light of the Supreme Court's decision in Leocal v. Ashcroft, 543 U.S. 1 [ 125 S.Ct. 377, 160 L.Ed.2d 271] (2004). As Armendariz concedes, this issue is foreclosed. See Brieva-Perez v. Gonzales, 482 F.3d 356, 360-61 (5th Cir. 2007); United States v. Galvan-Rodriguez, 169 F.3d 217, 219-20 (5th Cir. 1999).
In light of Apprendi v. New Jersey, 530 U.S. 466 [ 120 S.Ct. 2348, 147 L.Ed.2d 435] (2000), Armendariz also challenges the constitutionality of 8 U.S.C. § 1326(b)'s treatment of prior felony and aggravated felony convictions as sentencing factors rather than elements of the offense that must be found by a jury. This court has held that this issue is "fully foreclosed
APPENDIX — Continued
from further debate." United States v. Pineda-Arrellano, 492 F.3d 624, 625 (5th Cir. 2007), petition for cert. filed (Aug. 28, 2007) (No. 07-6202).
AFFIRMED.