* 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that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5 TH C IR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. United States Court of Appeals

Fifth Circuit 

## FILED

June 1, 2004

Charles R. Fulbruge III Clerk IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 03-40613 Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

FRANCISCO JAVIER HERNANDEZ-ORTIZ,

Defendant-Appellant.

-------------------- Appeal from the United States District Court
for the Southern District of Texas

USDC No. B-02-CR-752-ALL

--------------------

Before BARKSDALE, EMILIO M. GARZA, and DENNIS, Circuit Judges.

PER CURIAM: *

Francisco Hernandez-Ortiz appeals his sentence following his

guilty plea conviction for being present in the United States after

having been deported following an aggravated felony conviction. 8

U.S.C. § 1326. He argues that the district court erred when it

increased his offense level by 16 based upon his prior state

assault conviction, which he contends was not punishable by a term

of imprisonment over one year and was thus not a felony crime of

violence under Sentencing Guideline § 2L1.2 ( b)(1)(A)(ii). HeNo. 03-40613

-2-

contends that h is trial attorney was ineffective in not raising

this issue in the district court and that the waiver-of-appeal

provision in the plea agreement thus does not prevent review of his

sentencing claim.

Hernandez-Ortiz also contends that his state assault

conviction should have been considered as an essential element of

the offense of illegal reentry and that the district court should

have determined beyond a reasonable doubt that Hernandez-Ortiz had

been convicted of an aggravated felony before adjusting his

senten ce accordingly. As he acknowledges, this argument is

foreclosed by Almendarez-Torres v. United States , 523 U.S. 224

(1998), and United States v. Dabeit , 231 F.3d 979, 984 (5th Cir.

2000). A lmendarez-Torres was not overruled by Apprendi v. New

Jersey

, 530 U.S. 466 (2000). S ee Dabei t , 231 F.3d at 984. We

AFFIRM Hernandez-Ortiz’s conviction.

Given the Government’s election not to enforce the plea

agreement and the plea agreement’s vagueness with allowing an

appeal of an illegal sentence, Hernandez-Ortiz’s waiver of appeal

provision does not prevent us from reviewing the merits of his

challenge to his sentence. See United States v. Rhodes , 253 F.3d

800, 804 (5th Cir. 2001); U nited States v. Somner

, 127 F.3d 405,

407 (5th Cir. 1997).

The government agrees with Hernandez-Ortiz that the 16-level

enhancement under Sentencing Guideline § 2L1.2(b)(1)(A)(ii) was

inappropriate and argues instead that a n 8-level enhancement isNo. 03-40613

-3-

appro priate under Sentencing Guideline § 2L1.2(b)(1)(C). As the

government agrees with Hernandez-Ortiz that the 16-level sentence

enhancement was inappropriate, Hernandez-Ortiz’s sentence is

VACATED; the case is REMANDED for a determination as to the

propriety of the 8-level enhancement argued for by the government;

and the district court should then RESENTENCE Hernandez-Ortiz

accordingly.

CONVICTION AFFIRMED; SENTENCE VACATED; REMANDED FOR

RESENTENCING IN ACCORDANCE WITH THIS OPINION.