USA vs. Alaniz-Garcia, (5th Cir. 2003)

Text

---

* Pursuant to 5 TH C IR . R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5 TH C IR . R. 47.5.4. IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 02-40272 Summary Calendar UNITED STATES OF AMERICA, Plaintiff-Appellee, versus JUSTINO ALANIZ-GARCIA, Defendant-Appellant. Appeal from the United States District Court for the Southern District of Texas USDC No. B-01-CR-480-1 March 7, 2003 Before JOLLY, JONES, and EMILIO M. GARZA, Circuit Judges.

PER CURIAM: * Justino Alaniz-Garcia pleaded guilty to an indictment charging him with illegal reentry following deportation in violation of 8 U.S.C. § 1326(a) & (b). Alaniz has appealed his sentence. Alaniz argues that the sentence-enhancing provisions of 8 U.S.C. § 1326(b) are unconstitutional in light of Apprendi v. New Jersey , 530 U.S. 466 (2000). Alaniz concedes that his argument 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), cert. denied , 531 U.S. 1202 (2001). He seeks to preserve the issue for Supreme Court review. Alaniz contends also that the district court erred by concluding that his prior conviction for reckless bodily injury to a child, see T EX . P ENAL C ODE A NN . § 22.04(a)(3) & (f) (West 1994), was a § 2L1.2(b)(1)(A) (2001). We vacate the sentence and remand for resentencing in light of United States v. Gracia-Cantu , 302 F.3d 308, 310-13 (5th Cir. 2002).

VACATE AND REMAND.

No. 02-40272

---