United States v. Sanchez-Ortiz , 135 F. App'x 715 ( 2005 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT June 22, 2005
Charles R. Fulbruge III
Clerk
No. 03-41563
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JOSE LUIS SANCHEZ-ORTIZ,
Defendant-Appellant.
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Appeals from the United States District Court
for the Southern District of Texas
USDC No. 5:03-CR-706-1
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Before JONES, BARKSDALE and PRADO, Circuit Judges.
PER CURIAM:*
Jose Luis Sanchez-Ortiz (“Sanchez”) appeals the conviction
and sentence that he received after he pleaded guilty to being
illegally present in the United States after deportation in
violation of 8 U.S.C. § 1326. Sanchez argues that his case
should be remanded under United States v. Booker, 125 S. Ct. 738
(2005), because the district court committed reversible plain
error when it sentenced him under the mandatory Sentencing
Guidelines. Although Sanchez alleges a Booker error, this court
*
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this opinion should not be published and is not precedent except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. 03-41563
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must first address the antecedent error that the district court
committed when it applied § 2L1.2(b)(1)(A) to enhance Sanchez’s
sentence. United States v. Villegas, 404 F.3d 355, 364 n.8 (5th
Cir. 2005).
After Sanchez was sentenced, this court held that the Texas
offense of retaliation is not a crime of violence for purposes of
U.S.S.G. § 2L1.2(b)(1)(A). United States v. Martinez-Mata, 393
F.3d 625, 629 (5th Cir. 2004). De novo review of Sanchez’s
sentence indicates that the district court’s enhancement of
Sanchez’s sentence for his prior conviction for retaliation was
therefore error. See United States v. Olano, 507 U.S. 725, 731
(1993); Villegas, 2005 WL 627963 at **4, 5. The error was also
plain. See Johnson v. United States, 520 U.S. 461, 468 (1997).
Further, Sanchez has met his burden of showing that the error
affected the outcome of the sentencing proceedings because he
received a sentence that was several years longer and in another
Guidelines range of imprisonment than he would have absent the
error. Villegas, 2005 WL 50317 at *7. Finally, because the
sentencing error resulted in an increased sentence, this court
will exercise its discretion to correct it. See United States v.
Williamson, 183 F.3d 458, 463 (5th Cir. 1999). Accordingly,
Sanchez’s sentence is VACATED, and his case is REMANDED for
resentencing.
Sanchez’s argument that the “felony” and “aggravated felony”
provisions of 8 U.S.C. § 1326(b)(1) and (2) are unconstitutional
No. 03-41563
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is foreclosed by Almendarez-Torres v. United States, 523 U.S. 224
(1998). See United States v. Dabeit, 231 F.3d 979, 984 (5th Cir.
2000). His conviction is, therefore, AFFIRMED.
AFFIRMED IN PART; VACATED AND REMANDED IN PART.