* 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that this opinion should not be published and is not precedent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.

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.

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

Appeal from the United States District Court

for the Southern District of Texas

USDC No. H-00-CR-475-1

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

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. 
No. 00-21100

-2-

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

-3-

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.