          IN THE UNITED STATES COURT OF APPEALS
                   FOR THE FIFTH CIRCUIT United States Court of Appeals
                                                  Fifth Circuit

                                                                   FILED
                                                                December 11, 2007
                                No. 06-41346
                              Summary Calendar               Charles R. Fulbruge III
                                                                     Clerk

UNITED STATES OF AMERICA

                                           Plaintiff-Appellee

v.

ROMAN GUTIERREZ-SALINAS

                                           Defendant-Appellant


                 Appeal from the United States District Court
                      for the Southern District of Texas
                         USDC No. 5:06-CR-541-ALL


Before JOLLY, DENNIS, and PRADO, Circuit Judges.
PER CURIAM:*
      Roman Gutierrez-Salinas (Gutierrez) appeals his guilty plea conviction
and resulting sentence for illegal reentry following deportation. Gutierrez
argues that the district court erred in enhancing his offense level pursuant to
U.S.S.G. § 2L1.2(b)(1)(A)(ii) based on a finding that his 2000 Oklahoma
conviction for first degree manslaughter is a crime of violence. He contends that
the Oklahoma statute does not have the intentional use of force as an element



      *
      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should not be published and is not precedent except under the limited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. 06-41346

of the offense and does not have a mens rea requirement of recklessness and
therefore cannot be considered a crime of violence.
      This court reviews the district court’s interpretation of the Sentencing
Guidelines de novo. United States v. Villegas, 404 F.3d 355, 359-61 (5th Cir.
2005). Gutierrez was convicted of first degree manslaughter under 21 OKL. ST.
ANN. § 711(1), which defines manslaughter as a homicide committed “without
design to effect death” while the offender is engaged in the commission of a
misdemeanor. It is undisputed that Gutierrez was convicted of causing the
death of a person as a result of driving a vehicle while intoxicated. The offense
does not require the offender to avail himself of the intentional use of force. See
United States v. Vargas-Duran, 356 F.3d 598, 605 (5th Cir. 2004) (en banc).
      Nor does the offense qualify as the enumerated offense of manslaughter.
In United States v. Dominguez-Ochoa, 386 F.3d 629, 644-46 (5th Cir. 2004), this
court held that the generic, contemporary meaning of manslaughter
encompassed a mens rea requirement of recklessness. In United States v.
Valenzuela, 389 F.3d 1305, 1036 (5th Cir. 2004), this court determined the
Florida statute criminalizing DUI/manslaughter did not have a mens rea
requirement of recklessness. The statute at issue in the instant case is similar
to that in Valenzuela in that it is a strict liability offense and does not require
a mens rea of recklessness. See FLA. STAT. ANN. § 316.193(3)(C)(3). Because
Gutierrez’s 2000 Oklahoma conviction for first degree manslaughter is not a
crime of violence, the district court erred by increasing his offense level under
§ 2L1.2(b)(1)(A)(ii). Accordingly, Gutierrez’s sentence is vacated, and the case
is remanded for resentencing.
      Gutierrez also challenges the reasonableness of his sentence. He argues
that his sentence is unreasonable as a matter of law because this court’s
application of a presumption of reasonableness to sentences imposed within a
properly calculated guidelines range is in violation of the Sixth Amendment and
the principles announced in United States v. Booker, 543 U.S. 220 (2005).

                                        2
                                  No. 06-41346

Because his sentence is vacated as a result of the district court’s incorrect
application of the Guidelines, it is not necessary consider his argument. See
United States v. Tzep-Mejia, 461 F.3d 522, 526 (5th Cir. 2006). Regardless, the
argument is foreclosed in light of Rita v. United States, 127 S. Ct. 2456, 2462-69
(2007), wherein the Supreme Court affirmed the use of a presumption of
reasonableness to review sentences imposed within the guidelines range.
      Gutierrez also challenges the constitutionality of 8 U.S.C. § 1326(b)’s
treatment of prior felony and aggravated felony convictions as sentencing factors
rather than elements of the offense that must be found by a jury. Gutierrez’s
constitutional challenge is foreclosed by Almendarez-Torres v. United States, 523
U.S. 224, 235 (1998).     Although he contends that Almendarez-Torres was
incorrectly decided and that a majority of the Supreme Court would overrule
Almendarez-Torres in light of Apprendi v. New Jersey, 530 U.S. 466 (2000), we
have repeatedly rejected such arguments on the basis that Almendarez-Torres
remains binding. See United States v. Garza-Lopez, 410 F.3d 268, 276 (5th Cir.
2005). Gutierrez properly concedes that his argument is foreclosed in light of
Almendarez-Torres and circuit precedent, but he raises it here to preserve it for
further review.
      AFFIRMED       IN    PART;     VACATED       AND      REMANDED         FOR
RESENTENCING.




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