                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS           May 8, 2003
                       FOR THE FIFTH CIRCUIT
                                                          Charles R. Fulbruge III
                                                                  Clerk

                            No. 02-51326
                          Summary Calendar


UNITED STATES OF AMERICA,

                                    Plaintiff-Appellee,

versus

EDUARDO FELIX ESPINOZA,

                                    Defendant-Appellant.

                       --------------------
          Appeal from the United States District Court
                for the Western District of Texas
                  USDC No. EP-02-CR-1169-ALL-DB
                       --------------------

Before DAVIS, WIENER and EMILIO M. GARZA, Circuit Judges.

PER CURIAM:*

     Eduardo Felix Espinoza appeals his conviction and sentence

for attempting to reenter the United States subsequent to removal

and without the consent of the Attorney General in violation of

8 U.S.C. § 1326.

     Espinoza contends that his indictment did not allege a prior

aggravated felony conviction and that he was subject to a maximum

sentence of two years under 8 U.S.C. § 1326(a).   He asserts that

his forty-one-month sentence is a violation of due process 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that this opinion should not be published and is not precedent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. 02-51326
                                  -2-

that the characterization of 8 U.S.C. § 1326(b)(2) as a sentence

enhancement provision is unconstitutional.

     Espinoza acknowledges that his argument is foreclosed by the

Supreme Court’s decision in Almendarez-Torres v. United States,

523 U.S. 224 (1998), but he seeks to preserve the issue for

Supreme Court review in light of the decision in Apprendi v. New

Jersey, 530 U.S. 466, 490 (2000).    Apprendi did not overrule

Almendarez-Torres.   Apprendi, 530 U.S. at 489-90, 496; United

States v. Dabeit, 231 F.3d 979, 984 (5th Cir. 2000).

Accordingly,   Espinoza’s conviction is AFFIRMED.

     Espinoza appeals his sentence on the ground that the

district court improperly classified his Colorado felony

conviction for stalking by causing emotional distress as a crime

of violence and improperly increased his base offense level by

sixteen levels pursuant to U.S.S.G. § 2L1.2(b)(1)(A).   Because

Espinoza raises this issue for the first time on appeal, our

review is for plain error.    United States v. Calverley, 37 F.3d

160, 162 (5th Cir. 1994) (en banc).    We find plain error only if

“(1) there was an error; (2) the error was clear and obvious, and

(3) the error affected [Espinoza’s] substantial rights.”     United

States v. Gracia-Cantu, 302 F.3d 308, 310 (5th Cir. 2002).     If

these elements are established, we may exercise our discretion to

correct the error “only if it ‘seriously affect[s] the fairness,

integrity, or public reputation of judicial proceedings.’”       Id.
                            No. 02-51326
                                 -3-

     Under the applicable Sentencing Guidelines, a sixteen-level

increase is applied to the base offense level if the defendant’s

prior deportation followed a conviction for a “crime of

violence.”   United States Sentencing Commission, Guidelines

Manual, § 2L1.2(b)(1)(A) (Nov. 2001).      The commentary to § 2L1.2

lists certain offenses that are crimes of violence.      U.S.S.G.

§ 2L1.2, comment. (n.1(B)(ii)(II)).    Espinoza’s stalking offense

is not one of the enumerated offenses.

     The commentary also defines a crime of violence as an

“offense under federal, state, or local law that has as an

element the use, attempted use, or threatened use of physical

force against the person of another.”      U.S.S.G. § 2L1.2, comment.

(n.1(B)(ii)(I)).    We do not look to the facts underlying the

stalking offense to determine whether it is a crime of violence.

United States v. Rodriguez-Rodriguez, ___ F.3d ___, 2003 WL

549186, *1 (5th Cir. Feb. 27, 2003).    We look “‘only to the fact

of conviction and the statutory definition.’”      Id.

     Espinoza was convicted of violating COLO. REV. STAT. § 18-9-

111(4)(b)(III) (2003), which provides that a person commits

stalking if directly, or indirectly through another person, such

person knowingly:

          (III) Repeatedly follows, approaches,
          contacts, places under surveillance, or makes
          any form of communication with another
          person, a member of that person’s immediate
          family, or someone with whom that person has
          or has had a continuing relationship in a
          manner that would cause a reasonable person
          to suffer serious emotional distress and does
                            No. 02-51326
                                 -4-

          cause that person, a member of that person’s
          immediate family, or someone with whom that
          person has or has had a continuing
          relationship to suffer serious emotional
          distress.

COLO. REV. STAT. § 18-9-111(4)(b)(III) (2003).    The statutory

language shows and the Government concedes that Espinoza’s

offense does not include an element that contemplates proof of

the use, attempted use, or threatened use of physical force

against another person.   Espinoza’s stalking conviction is not a

crime of violence under U.S.S.G. § 2L1.2(b)(1)(A), and the

addition of sixteen levels to his base offense level was clear

and obvious error.    Cf. Gracia-Cantu, 302 F.3d at 313.

     If the district court had not characterized Espinoza’s

stalking offense as a crime of violence and added sixteen levels

to his base offense level, Espinoza’s total offense level would

have been, at most, thirteen, and his sentencing guideline range

would have been, at most, fifteen to twenty-one months’

imprisonment.   U.S.S.G. § 2L1.2(b)(1); sentencing table.     The

dramatic increase in the sentence that resulted from the error

affected Espinoza’s substantial rights.    Cf. Gracia-Cantu, 302

F.3d at 313.    “Such a sentencing error also seriously affects the

fairness, integrity, or public reputation of the judicial

proceedings.”   Id.   The addition of sixteen levels to Espinoza’s

base offense level constituted plain error.      Accordingly, we

VACATE Espinoza’s sentence and REMAND for resentencing.

     AFFIRMED IN PART; VACATED AND REMANDED IN PART.
