IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 02-40272 Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

JUSTINO ALANIZ-GARCIA,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Southern District of Texas USDC No. B-01-CR-480-1 -------------------- March 7, 2003

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

PER CURIAM:*

Justino Alaniz-Garcia pleaded guilty to an indictment

charging him with illegal reentry following deportation in

violation of

(a) & (b). Alaniz has appealed his

sentence.

Alaniz argues that the sentence-enhancing provisions of

(b) are unconstitutional in light of Apprendi v.

New Jersey,

(2000). Alaniz concedes that his

argument is foreclosed by Almendarez-Torres v. United States, 523

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 02-40272 -2-

U.S. 224 (1998). See United States v. Dabeit,

(5th Cir. 2000), cert. denied,

(2001). He seeks to

preserve the issue for Supreme Court review.

Alaniz contends also that the district court erred by

concluding that his prior conviction for reckless bodily injury

to a child, see TEX. PENAL CODE ANN. § 22.04(a)(3) & (f) (West

1994), was a “crime of violence” under U.S.S.G. § 2L1.2(b)(1)(A)

(2001). We vacate the sentence and remand for resentencing in

light of United States v. Gracia-Cantu,

(5th

Cir. 2002).

VACATE AND REMAND.