               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT



                           No. 00-50650
                         Summary Calendar



UNITED STATES OF AMERICA,

                                         Plaintiff-Appellee,

versus

DANIEL RUIZ-VEGA,

                                         Defendant-Appellant.

                        - - - - - - - - - -
           Appeal from the United States District Court
                 for the Western District of Texas
                      USDC No. DR-99-CR-137-1
                        - - - - - - - - - -
                          October 31, 2001

Before DAVIS, BENAVIDES, and STEWART, Circuit Judges.

PER CURIAM:*

     Daniel Ruiz-Vega (Ruiz) pleaded guilty to illegal reentry

into the United States after removal, a violation of 8 U.S.C.

§ 1326.   Ruiz’s offense level was enhanced 16 levels pursuant to

U.S.S.G. § 2L1.2(b)(1)(A) based on a Texas felony

driving-while-intoxicated (DWI) conviction, which was

characterized as an aggravated felony.   The district court

sentenced Ruiz to 77 months’ imprisonment.

     Ruiz contends that his prior DWI conviction that resulted in

his increased sentence under 8 U.S.C. § 1326(b)(2) was 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that this opinion should not be published and is not precedent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. 00-50650
                                 -2-

of the offense that should have been charged in the indictment.

He acknowledges that his argument is foreclosed by

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 (2000).

Apprendi did not overrule Almendarez-Torres.     See Apprendi, 530

U.S. at 489-90; United States v. Dabeit, 231 F.3d 979, 984 (5th

Cir. 2000), cert. denied, 121 S. Ct. 1214 (2001).    Ruiz’s

argument is foreclosed.

     Ruiz argues that the district court erred by applying the

16-level enhancement because his prior felony DWI conviction is

not an aggravated felony.   Because Ruiz raises this issue for the

first time on appeal, we review for plain error.     United States

v. Calverley, 37 F.3d 160, 162 (5th Cir. 1994) (en banc); see

United States v. Olano, 507 U.S. 725, 730-36 (1993).

     A Texas felony DWI conviction is not a “crime of violence”

as defined in 18 U.S.C. § 16 and thus is not an aggravated felony

for the purpose of a U.S.S.G. § 2L1.2(b)(1)(A) 16-level

enhancement.    United States v. Chapa-Garza, 243 F.3d 921, 927

(5th Cir. 2001).   Thus, the district court’s error in applying

the 16-level enhancement was plain and affected Ruiz’s

substantial rights.   Because Ruiz’s sentencing range would be

reduced substantially without the 16-level enhancement, we

exercise our discretion to correct this error.     See United States

v. Miranda, 248 F.3d 434, 445 (5th Cir. 2001).    Accordingly,

Ruiz’s sentence is VACATED, and this matter is REMANDED for

resentencing.
                             No. 00-50650
                                  -3-

     Finally, Ruiz argues that the district court erred in

denying him a downward departure based on his cultural

assimilation into this country in the mistaken belief that it

lacked the authority to depart.    "[C]ultural assimilation is a

permissible basis for downward departure."    United States v.

Rodriguez-Montelongo, ___ F.3d ___ (5th Cir. Aug 23, 2001, No.

00-51023), 2001 WL 958907, *4.    The district court’s declaration

that it lacked authority to depart based on the theory of

cultural assimilation is erroneous.    On remand the district court

should consider wether Ruiz is entitled to a downward departure

on the basis of cultural assimilation.

     VACATED AND REMANDED.
