                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                   April 7, 2004

                                                         Charles R. Fulbruge III
                                                                 Clerk
                             No. 03-40245
                           Summary Calendar


UNITED STATES OF AMERICA

                      Plaintiff - Appellee

     v.

DAVID GARCIA-JUAREZ

                      Defendant - Appellant

                       --------------------
          Appeal from the United States District Court
               for the Southern District of Texas
                    USDC No. L-02-CR-1138-ALL
                       --------------------

Before KING, Chief Judge, and HIGGINBOTHAM and WIENER, Circuit
Judges.

PER CURIAM:*

     David Garcia-Juarez appeals from his conviction of illegal

reentry following deportation.    Garcia contends, for the first

time on appeal, that his sentence violated the relevant statutory

maximum of 8 U.S.C. § 1326(a) and that the district court erred

by imposing the 16-level crime-of-violence adjustment of U.S.S.G.

§ 2L1.2(b)(1)(A)(ii) because he was not actually convicted of

assault with a deadly weapon in Minnesota in 2000.     He also

contends, for the first time on appeal, that the “felony” and

     *
        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that this opinion should not be published and is not precedent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. 03-40245
                                  -2-

“aggravated felony” provisions of 8 U.S.C. § 1326(b) are

unconstitutional in light of Apprendi v. New Jersey, 530 U.S. 466

(2000).

     A sentence that exceeds the statutory maximum is illegal and

constitutes plain error.     United States v. Sias, 227 F.3d 244,

246 (5th Cir. 2000).    Garcia was deported before his scheduled

sentencing date in Minnesota, and he has never been sentenced on

his Minnesota guilty plea.    He was never formally adjudicated

guilty in Minnesota.    See State v. Hoelzel, 639 N.W.2d 605, 609

(Minn. 2002).   Garcia was not convicted in Minnesota for federal

immigration law purposes.    See Moosa v. INS, 171 F.3d 994, 1001-

02 (5th Cir. 1999).    As the government concedes, the district

court therefore erred by imposing the 16-level adjustment and by

sentencing Garcia to more than two years’ imprisonment.    Because

the district court erred by sentencing Garcia under the

“aggravated felony” provision of 8 U.S.C. § 1326(b), we do not

reach the issue, raised for the first time on appeal, of the

constitutionality of 8 U.S.C. § 1326(b).

     VACATED AND REMANDED.
