IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 01-50528 Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

HECTOR ORTIZ-IRIGOYEN,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Western District of Texas USDC No. EP-01-CR-142-ALL-H -------------------- December 6, 2001 Before JONES, SMITH, and EMILIO M. GARZA, Circuit Judges.

PER CURIAM:*

Hector Ortiz-Irigoyen appeals from his sentence for illegal

reentry after deportation. He argues that the district court

erred by adjusting his guideline offense level by 16 levels

pursuant to U.S.S.G. § 2L1.2 for having been deported after

commission of an aggravated felony. Relying largely on United

States v. Chapa-Garza,

(5th Cir. 2001), Ortiz argues

that his Oregon conviction of second-degree manslaughter, OR.

REV. STAT. § 163.125(1)(a)(1999), was not an aggravated felony

because his manslaughter offense was based on an accident that

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 01-50528 -2-

occurred when he was driving drunk and because the requisite mens

rea for his manslaughter offense was recklessness.

Ortiz pleaded guilty to an indictment that identified the

Oregon manslaughter conviction as an aggravated felony, and he

admitted in response to the factual resume that the conviction

was an aggravated felony. He has thus waived any challenge to

the classification of the manslaughter conviction as an

aggravated felony for sentencing purposes. See United States v.

Olano,

(1993).

Even were the issue not waived, there is no error. In

Chapa-Garza, we held that the Texas offense of felony DWI

(driving while intoxicated) did not constituted an “aggravated

felony” for purposes of U.S.S.G. § 2L1.2 and

(b).

Chapa-Garza,

. We noted in Chapa-Garza our prior

holding in United States v. Galvan-Rodriguez,

(5th

Cir.), cert. denied,

(1999), that unauthorized use

of a vehicle was a crime of violence. We held Galvan-Rodriguez

consistent with Chapa-Garza “as it cannot be doubted that there

is a substantial risk that physical force will be used against a

vehicle in order to obtain the unauthorized access to it that is

necessary for the commission of the offense of joyriding.”

Chapa-Garza,

. Those recklessness offenses

that by their nature present a substantial risk that physical

force will be used constitute crimes of violence, as defined by

(b), and therefore constitute aggravated felonies

for purposes of U.S.S.G. § 2L1.2. See Chapa-Garza,

. Ortiz’s reckless second-degree manslaughter conviction, No. 01-50528 -3-

which resulted in the death of another person, by definition

presented a substantial risk that physical force against the

person or property of another might be used in the course of

committing the offense.

AFFIRMED.