                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                   June 1, 2004

                                                          Charles R. Fulbruge III
                                                                  Clerk
                           No. 03-40613
                         Summary Calendar



                     UNITED STATES OF AMERICA,

                                    Plaintiff-Appellee,

                              versus

                 FRANCISCO JAVIER HERNANDEZ-ORTIZ,

                                    Defendant-Appellant.

                      --------------------
          Appeal from the United States District Court
               for the Southern District of Texas
                    USDC No. B-02-CR-752-ALL
                      --------------------

Before BARKSDALE, EMILIO M. GARZA, and DENNIS, Circuit Judges.

PER CURIAM:*

     Francisco Hernandez-Ortiz appeals his sentence following his

guilty plea conviction for being present in the United States after

having been deported following an aggravated felony conviction.         8

U.S.C. § 1326.   He argues that the district court erred when it

increased his offense level by 16 based upon his prior state

assault conviction, which he contends was not punishable by a term

of imprisonment over one year and was thus not a felony crime of

violence under Sentencing Guideline § 2L1.2(b)(1)(A)(ii).             He

     *
        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that this opinion should not be published and is not precedent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. 03-40613
                                          -2-

contends that his trial attorney was ineffective in not raising

this issue in the district court and that the waiver-of-appeal

provision in the plea agreement thus does not prevent review of his

sentencing claim.

       Hernandez-Ortiz        also     contends     that    his     state   assault

conviction should have been considered as an essential element of

the offense of illegal reentry and that the district court should

have determined beyond a reasonable doubt that Hernandez-Ortiz had

been   convicted   of    an    aggravated       felony     before   adjusting    his

sentence    accordingly.        As     he    acknowledges,     this   argument   is

foreclosed by Almendarez-Torres v. United States, 523 U.S. 224

(1998), and United States v. Dabeit, 231 F.3d 979, 984 (5th Cir.

2000).     Almendarez-Torres was not overruled by Apprendi v. New

Jersey, 530 U.S. 466 (2000).                See Dabeit, 231 F.3d at 984.         We

AFFIRM Hernandez-Ortiz’s conviction.

       Given the Government’s election not to enforce the plea

agreement and the plea agreement’s vagueness with allowing an

appeal of an illegal sentence, Hernandez-Ortiz’s waiver of appeal

provision does not prevent us from reviewing the merits of his

challenge to his sentence.            See United States v. Rhodes, 253 F.3d

800, 804 (5th Cir. 2001); United States v. Somner, 127 F.3d 405,

407 (5th Cir. 1997).

       The government agrees with Hernandez-Ortiz that the 16-level

enhancement under Sentencing Guideline § 2L1.2(b)(1)(A)(ii) was

inappropriate and argues instead that an 8-level enhancement is
                             No. 03-40613
                                  -3-

appropriate under Sentencing Guideline § 2L1.2(b)(1)(C).       As the

government agrees with Hernandez-Ortiz that the 16-level sentence

enhancement    was   inappropriate,   Hernandez-Ortiz’s   sentence    is

VACATED; the case is REMANDED for a determination as to the

propriety of the 8-level enhancement argued for by the government;

and the district court should then RESENTENCE Hernandez-Ortiz

accordingly.

     CONVICTION   AFFIRMED;   SENTENCE  VACATED;   REMANDED          FOR
     RESENTENCING IN ACCORDANCE WITH THIS OPINION.
