UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 00-20317 Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

VERSUS

MARTIN FRAGA-ARAIGO,

Defendant - Appellant.

Appeal from the United States District Court For the Southern District of Texas, Houston (99-CR-436) November 20, 2001 Before KING, Chief Judge, and POLITZ and PARKER, Circuit Judges. * PER CURIAM:

Appellant, Martin Fraga-Araigo, filed this motion requesting

that we recall our mandate pursuant to Rule 41.2 of the Fifth

Circuit Rules, which allows us to recall a mandate if necessary to

prevent injustice. An example of such an injustice is when a

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 R. 47.5, the Court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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

1 subsequent decision by the U.S. Supreme Court or this court renders

a previous appellate decision demonstrably wrong. See United

States v. Tolliver,

(5th Cir. 1997); Burton v.

United States,

(5th Cir. 2000).

Fraga-Araigo, a foreign national, was deported in 1995. Prior

to his deportation, he had been convicted on three occasions, in

1989, 1991, and 1993, for felony driving while intoxicated (“DWI”)

under Texas state law. He reentered the United States illegally,

was apprehended, and appeared before the district court, which

found him guilty of illegal reentry under

et. seq.

During sentencing, on April 3, 2000, the district court

characterized Fraga-Araigo’s prior felony DWI convictions as

aggravated felonies under the sentencing guidelines applicable to

§ 1326 offenses, U.S.S.G. § 2L1.2, et. seq. The district court

adopted the definition of “aggravated felony” set forth in

(a)(43), as referenced by U.S.S.G. § 2L1.2, as a “crime of

violence” within the meaning of

(b). Therefore, the

sentencing terms of

(b)(2), for illegal reentry

subsequent to a conviction for an aggravated felony, applied rather

than those of § 1326(b)(1), for misdemeanors and felonies other

than the aggravated type. The effect of such a finding was to

apply a 16-level offense increase under U.S.S.G. §2L1.2 to Fraga-

Araigo’s base offense level of 8 and to elevate his mandatory

sentencing range under the guidelines to as much as 71 months. The

2 district court, in fact, sentenced him to 71 months. If the

earlier DWI convictions had qualified as felonies other than

aggravated, Fraga-Araigo would have been sentenced to a shorter

term, possibly of 30 months or less.

Fraga-Araigo was convicted on three occasions for DWI

offenses.

establishes that the penalty for illegal

reentry is enhanced for an individual whose removal was subsequent

to a conviction for three or more misdemeanors involving drugs,

crimes against the person, or both, or a felony (other than an

aggravated felony) and is enhanced again for an individual whose

removal was subsequent to an aggravated felony. It does not

establish any higher punishment for multiple convictions for non-

aggravated felonies. Therefore, if remanded for re-sentencing in

accordance with Chapa-Garza, Fraga-Araigo would still be eligible

for sentencing under the guidelines applicable to illegal reentry

subsequent to a conviction for a felony other than an aggravated

felony.

The district court adopted such a characterization because of

our earlier opinion in Camacho-Marroquin v. I.N.S.,

(5th Cir. 1999), which established felony DWI as a crime of

violence and thus an aggravated felony for sentencing purposes.

That opinion was withdrawn on July 11, 2000, following that

appellant’s motion to withdraw his request for a rehearing en banc,

allowing him to be deported in lieu of incarceration. Camacho-

3 Marroquin v. I.N.S.,

(5th Cir. 2000). Regardless, in

Fraga-Araigo’s case, the “aggravated felony” precedent applied at

the time of sentencing. When Fraga-Araigo filed his brief on

appeal with the Fifth Circuit on July 21, 2000, there still was no

clear basis to determine error in the district court’s sentencing.

We have since ruled that felony DWI under Texas law, by its

nature, does not constitute a “crime of violence” under

(b) and therefore is not an “aggravated felony” within the

meaning of

. See United States v. Chapa-Garza,

(5th Cir. 2001). On that basis, we remanded Chapa-

Garza to trial court for re-sentencing. We have since applied

Fifth Circuit Rule 41.2 to ensure no injustice would accrue in

other, similar cases. See, i.e., United States v. Rangel-Mendoza,

No. 00-40561,

(5th Cir. Oct. 1, 2001).1

Applying Rule 41.2 may not be appropriate in every case in

which a prisoner moves for post-mandate relief on the basis of a

subsequent opinion such as Chapa-Garza. For example, a motion to

recall a mandate after a lengthy period without petitioning for a

writ of certiorari to the U.S. Supreme Court, pursuing a habeas

corpus petition, or waiting a year or more without seeking relief

through some other direct appeal or collateral attack would be

disfavored because the apparent lack of true interest on the part

1 Unpublished order granting a motion to recall a mandate, and vacating and remanding for re-sentencing under conditions substantially similar to this case.

4 of the movant would tend to show that injustice has not been done.

Fraga-Araigo was sentenced by the district court in April 2000

and filed his brief on appeal in July 2000. Judgment by this court

was not entered until August 21, 2001, however, and the mandate in

this case was issued on September 12, 2001. Chapa-Garza was

decided in the interim and could have been considered by this panel

before entering judgment. Fraga-Araigo’s motion to reopen the

appeal, recall the mandate and to vacate and remand was filed on

October 22, 2001. Although he would have avoided the need for this

motion had he provided a supplementary brief to the court on Chapa-

Garza’s applicability, there is no doubt he has been both assiduous

and timely in pursuing his interests. In fact, he is still within

the 90 day window to petition for a writ of certiorari should he

not be successful on this motion. Because the mandate was issued

so recently, despite the extended period since Fraga-Araigo’s

original conviction and sentencing, the motion is eligible for

consideration.

Under the unusual circumstances surrounding Fraga-Araigo’s

sentencing followed by our opinion in Chapa-Garza, having noted

that the government does not oppose Fraga-Araigo’s motion and to

prevent injustice under Rule 41.2,

IT IS HEREBY ORDERED that appellant’s motion to reopen the

appeal is GRANTED;

IT IS FURTHER ORDERED that appellant’s motion to recall the

5 mandate is GRANTED:

IT IS FURTHER ORDERED that the sentence pronounced on the

appellant by the district court is VACATED;

IT IS FURTHER ORDERED that this case is REMANDED to the

district court for re-sentencing in accordance with this order.

6