United States v. Hilario-Carpio

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 00-21100
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JESUS HILARIO-CARPIO,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. H-00-CR-475-1
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October 30, 2001
Before DAVIS, BENAVIDES and STEWART, Circuit Judges.
PER CURIAM:*
Jesus Hilario-Carpio appeals his sentence for illegal
reentry, raising four issues. First, Hilario-Carpio argues that
the district court erred in enhancing his sentence by 16 offense
levels under U.S.S.G. § 2L1.2 based on his previous conviction of
driving while intoxicated (DWI), a Texas felony. Hilario-Carpio
correctly notes that under United States v. Chapa-Garza, 243 F.3d
921, 927 (5th Cir. 2001), felony DWI is not a crime of violence
as defined by 18 U.S.C. § 16(b), and therefore not an “aggravated
felony” for purposes of U.S.S.G. § 2L1.2.
*
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that this opinion should not be published and is not precedent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. 00-21100
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Hilario-Carpio did not raise this issue before the district
court. Because the issue is raised for the first time on appeal,
this court reviews for plain error. United States v. Calverley,
37 F.3d 160, 162 (5th Cir. 1994). Under the analysis outlined in
United States v. Olano, 507 U.S. 725, 730-36 (1993), this court
may reverse for plain error only if (1) there was an error (2)
that was clear and obvious and (3) that affected a defendant’s
substantial rights. Where these elements are present, a court
may exercise its discretion to correct the error if it “seriously
affect[s] the fairness, integrity, or public reputation of
judicial proceedings.” Id.Hilario-Carpio satisfies the plain error criteria. The
district court’s error is readily apparent under current law as
announced in Chapa-Garza, and the erroneous 16-level increase
affected Hilario-Carpio’s substantial rights. See United States
v. Alarcon, ___ F.3d ___ (5th Cir. Aug. 1, 2001, No. 00-50071),
2001 WL 871776 at *5 (two-level increase affects substantial
rights). In deciding whether to exercise our discretion to
correct plain error, this court has considered whether applying
the proper rule would result in significant reduction in the
length of a sentence. United States v. Miranda, 248 F.3d 434,
445 (5th Cir. 2001). Hilario-Carpio’s sentence is substantially
reduced by application of the rule announced in Chapa-Garza.
As Hilario-Carpio has carried his burden under the plain
error standard, we VACATE Hilario-Carpio’s sentence and REMAND
this matter to the district court for resentencing consistent
with this opinion. In view of our disposition of the above
No. 00-21100
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issue, Hilario-Carpio’s argument that his prior aggravated felony
was an element of the offense that had to be included in the
indictment is moot.
Hilario-Carpio’s two remaining arguments are without merit.
His contention that his indictment violates the Fifth and Sixth
Amendments because it does not allege intent on his part is
effectively foreclosed by United States v. Berrios-Centeno, 250
F.3d 294, 298-300 and n.4. (5th Cir. 2001), petition for cert.
filed, July 24, 2001, No. 01-5535, wherein a similarly-worded
indictment was upheld against a constitutional challenge.
Finally, as Hilario-Carpio recognizes, his argument that the
district court erred in not suppressing evidence of his
deportation due to alleged procedural deficiencies in his
administrative deportation proceedings is foreclosed by United
States v. Benitez-Villafuerete, 186 F.3d 651, 657-58 (5th Cir.
1999), cert. denied, 528 U.S. 1097 (2000).
Sentence VACATED; REMANDED for resentencing.