IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 00-50421 Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

BIVIANO AGUINAGA-JUAREZ, also known as Agiunaga Viviano Juarez, also known as Agiunaga Juarez, also known as Viviano Aginga, also known as Viviano Aguinaga-Juarez,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Western District of Texas USDC No. SA-99-CR-449-1-FB -------------------- October 11, 2001

Before DAVIS, BENAVIDES, and STEWART, Circuit Judges.

PER CURIAM:*

Biviano Aguinaga-Juarez pleaded guilty to illegal reentry of

the United States after removal, a violation of

.

Aguinaga-Juarez’s offense level was enhanced 16 levels pursuant

to U.S.S.G. § 2L1.2(b)(1)(A) based on his Texas felony driving-

while-intoxicated (“DWI”) conviction, which was characterized as

an aggravated felony. The district court sentenced Aguinaga-

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 00-50421 -2-

Juarez to 70 months’ imprisonment and three years’ supervised release.

Aguinaga-Juarez avers first that under the plain language of

(a)(5), which provides that a prior order of

removal may be “reinstated from its original date,” the date of

his deportation was 1997. Therefore, Aguinaga-Juarez contends

that the district court erred in imposing the

(b)(2) enhancement because his removal would not have been

subsequent to his 1999 DWI conviction. Aguinaga-Juarez also

argues that any ambiguity in

(a)(5) should be

construed in his favor in accordance with the rule of lenity.

Aguinaga-Juarez’s argument is foreclosed by this court’s

decision in United States v. Nava-Perez,

(5th Cir.),

cert. denied,

(2001). In Nava-Perez, this court

held that when two removals are based on the same order, with the

subsequent removal based on the order’s reinstatement, they are

nevertheless separate removals. Id. at 279. If, as is the case

here, an alien is convicted of a felony prior to the second

removal, he qualifies for

(b)(2)’s penalty

enhancement.

Aguinaga-Juarez argues for the first time on appeal that a

prior felony conviction is an element of the offense of illegal

reentry following deportation and that his indictment was

defective because it did not allege a prior felony conviction.

Aguinaga-Juarez concedes that his argument is foreclosed by

United States v. Almendarez-Torres,

(1998).

Aguinaga-Juarez contends, however, that Apprendi v. New Jersey, No. 00-50421 -3-

(2000), casts doubt on Almendarez-Torres and that he

is raising the argument to preserve it for Supreme Court review.

Apprendi did not overrule Almendarez-Torres. See Apprendi,

; see also United States v. Dabeit,

(5th Cir. 2000)(noting that the Supreme Court in

Apprendi expressly declined to overrule Almendarez-Torres),

cert. denied,

(2001). This court must therefore

follow the precedent set in Almendarez-Torres “unless and until

the Supreme Court itself determines to overrule it.” Dabeit,

(internal quotation marks and citation omitted); see

also Nava-Perez,

.

Aguinaga-Juarez argues that the district court erred by

increasing his offense level by 16 levels under U.S.S.G.

§ 2L1.2(b)(1)(A) because his prior Texas felony conviction for

DWI is not an aggravated felony. This court conducts a de novo

review of a district court’s application of the guidelines.

United States v. DeSantiago-Gonzalez,

(5th Cir.

2000).

A Texas felony DWI conviction is not a “crime of violence”

as defined in

and thus is not an aggravated felony

for the purpose of a U.S.S.G. § 2L1.2(b)(1)(A) 16-level

enhancement. United States v. Chapa-Garza,

(5th Cir. 2001). Thus, the district court committed error by

increasing Aguinaga-Juarez’s offense level by 16 levels for his

Texas felony DWI conviction. Accordingly, Aguinaga-Juarez’s

sentence is VACATED, and this matter is REMANDED for

resentencing.