IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 00-50082 Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

JOSE MAURO PUENTES,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Western District of Texas USDC No. EP-99-CR-1194-ALL-H -------------------- November 1, 2001

Before JONES, SMITH, and EMILIO M. GARZA, Circuit Judges.

PER CURIAM:*

Jose Mauro Puentes appeals his sentence following his

conviction for illegal reentry into the United States after

deportation. Puentes contends that the district court erred in

applying the 16-level sentencing enhancement pursuant to U.S.S.G.

§ 2L1.2(b)(1)(A), as his pre-deportation Arizona felony

conviction for aggravated driving while intoxicated (“DWI”) does

not constitute a crime of violence under

. He

further asserts that his felony DWI conviction was an element of

the offense that should have been charged in the indictment,

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 00-50082 -2-

although he concedes that that argument is foreclosed by

Almendarez-Torres v. United States,

(1998).

Because an intentional use of force is virtually never

employed to commit the 1992 version of the Arizona felony offense

of aggravated DWI, the offense is not a crime of violence as

defined by

(b). See

-

697(A) (West 1992); United States v. Chapa-Garza,

(5th Cir. 2001) (holding that the Texas felony offense of DWI

is not a crime of violence). Therefore, Puentes’ pre-deportation

Arizona aggravated DWI conviction is not an aggravated felony

conviction under U.S.S.G. § 2L1.2(b)(1)(A), and the district

court erred in applying the 16-level sentencing enhancement. See

Chapa-Garza,

. Puentes’ sentence is VACATED,

and this case is REMANDED for resentencing.