IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 00-50164 Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

FILEMON ALDAVERA-RICO,

Defendant- Appellant.

---------------------------------------------------------- Appeal from the United States District Court for the Western District of Texas USDC No. DR-99-CR-691-1 ---------------------------------------------------------- December 19, 2001 Before DAVIS, BENAVIDES and STEWART, Circuit Judges:

PER CURIAM:*

Filemon Aldavera-Rico (“Aldavera”) challenges the sentence he received following his guilty-

plea conviction for illegal reentry, in violation of

. Specifically, he renews his

argument that the district court erred in assessing a 16-level increase, pursuant to U.S.S.G. §

2Ll.2(b)(1)(A), based on his felony driving-while-intoxicated (DWI) conviction, which was

determined to be an aggravated felony. Aldavera contends that felony DWI is not “crime of violence”

as defined in

and is thus not an aggravated felony.

In United States v. Chapa-Garza,

(5th Cir. 2001), decided after the

district court sentenced Aldavera, t his court held that a felony DWI conviction is not a crime of

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. violence and is thus not an aggravated felony for the purpose of a § 2L1.2(b)(1)(A) 16-level

enhancement. Aldavera has filed an unopposed motion to remand the case for resentencing based

on Chapa-Garza. Because Chapa-Garza demonstrates that the 16-level enhancement was error, the

motion is GRANTED. Aldavera’s sentence is VACATED, and this cause is REMANDED for

resentencing. Because we so hold, Aldavera’s alternative argument that the enhancement was error

under Apprendi v. New Jersey,

(2000), is moot and is not addressed.

VACATED AND REMANDED; MOTION GRANTED.