IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 00-51146 Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee, versus

JULIO CESAR VELA-ORNELAS,

Defendant-Appellant.

- - - - - - - - - - Appeal from the United States District Court for the Western District of Texas USDC No. EP-00-CR-885-1-H - - - - - - - - - - November 8, 2001

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

PER CURIAM:*

Julio Cesar Vela-Ornelas appeals the 46-month term of

imprisonment imposed following his guilty plea conviction of

being found in the United States following removal, in violation

of

. He contends that the district court erred by

increasing his offense level 16 levels pursuant to U.S.S.G.

§ 2L1.2(b)(1)(A) based on his prior felony conviction of driving

while intoxicated (“DWI”). He notes pursuant to this court’s

decision in United States v. Chapa-Garza,

(5th

Cir. 2001), rehearing and rehearing en banc denied,

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 00-51146 -2-

(5th Cir. 2001), that a Texas felony DWI conviction is not a

“crime of violence” as defined in

(b) and thus is

not an aggravated felony for the purpose of a 16-level adjustment

under U.S.S.G. § 2L1.2(b)(1)(A). The Government has filed an

unopposed motion to remand for resentencing acknowledging that

the district court, which did not have the benefit of Chapa-Garza

when it sentenced Vela-Ornelas, erred in applying the 16-level

adjustment.

The Government’s motion to remand is GRANTED, the sentence

is VACATED, and this case is REMANDED for resentencing in light

of Chapa-Garza. The motion to expedite is DENIED.