                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                November 21, 2003

                                                         Charles R. Fulbruge III
                                                                 Clerk
                           No. 03-40618
                         Summary Calendar



UNITED STATES OF AMERICA,

                Plaintiff-Appellee,

                              versus

JOSE MONTOYA-RUBIO,

                Defendant-Appellant.

                      --------------------
          Appeal from the United States District Court
               for the Southern District of Texas
                     USDC No. B-02-CR-500-1
                      --------------------

Before HIGGINBOTHAM, DAVIS, and PRADO, Circuit Judges.

PER CURIAM:*

     Jose Montoya-Rubio (Montoya) appeals his sentence following

his guilty plea conviction for being found in the United States

after deportation.    He contends that the district court plainly

erred in imposing a 16-level enhancement at sentencing under

U.S.S.G. § 2L1.2(b)(1)(A)(ii), based on his prior conviction for

felony robbery, a crime of violence.   We agree.

     The guideline requires that the defendant must have been

deported after the felony or that he remained in the United States

     *
        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that this opinion should not be published and is not precedent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.
in contravention of a remand order issued after the conviction.

Montoya was deported in November 1999; he was placed on deferred

adjudication for the robbery in August 2000 and was adjudicated

guilty in February 2002.           Accordingly, he was not deported after

the   felony    and   he    did    not   remain       in    the    United      States   in

contravention of a remand order issued after the conviction.                            As

the   government      concedes,       these        circumstances         make    Montoya

ineligible      for   the    16-level           enhancement       and    his    sentence

constitutes plain error.1           Consequently, the sentence imposed by

the   district    court     is    VACATED       and   the   case    is   REMANDED       for

resentencing.

      Montoya also asserts for the first time on appeal that 8

U.S.C. § 1326(b) is unconstitutional in light of Apprendi v. New

Jersey.2       In light of the recommended remand, this issue is

arguably moot.        Moreover, as Montoya concedes, his argument is

foreclosed by Almendarez-Torres v. United States,3 but he raises

the issue to preserve it for Supreme Court review.4                       The judgment

of the district court is AFFIRMED as to this ground.




      1
       See United States v. Alarcon, 261 F.3d 416, 423 (5th Cir.
2001), cert. denied, 534 U.S. 1099 (2002).
      2
          530 U.S. 466 (2000).
      3
          523 U.S. 224 (1998).
      4
          See United States v. Dabeit, 231 F.3d 979, 984 (5th Cir.
2000).

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