               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT



                           No. 01-20047
                         Summary Calendar



UNITED STATES OF AMERICA,

                                           Plaintiff-Appellee,

versus

JOSE LUIS VARGAS, also known as Jose Luis Vargas-Gonzalez,
also known as Jose Vargas-Vargas, also known as
Jose Jesus Vargas,

                                           Defendant-Appellant.

                       - - - - - - - - - -
          Appeal from the United States District Court
               for the Southern District of Texas
                    USDC No. H-00-CR-328-ALL
                       - - - - - - - - - -
                         October 18, 2001

Before REAVLEY, HIGGINBOTHAM and WIENER, Circuit Judges.

PER CURIAM:*

     Jose Luis Vargas (Vargas) has appealed his conviction based

on a guilty plea to illegal reentry into the United States after

removal, a violation of 8 U.S.C. § 1326.    Vargas’s guideline

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 determined to be an

aggravated felony.   The district court sentenced Vargas to 80

months’ imprisonment.

     *
        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that this opinion should not be published and is not precedent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. 01-20047
                                 -2-

     Vargas contends that the district court erred by applying

the 16-level enhancement because his prior felony DWI conviction

is not an aggravated felony.    Because Vargas raises this issue

for the first time on appeal, we review for plain error.    See

United States v. Calverley, 37 F.3d 160, 162 (5th Cir. 1994) (en

banc); 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, 927-28

(5th Cir. 2001) (decided after the district court sentenced

Vargas).    Therefore, the district court’s error in applying the

16-level enhancement was plain and affected Vargas’s substantial

rights.    Because Vargas’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.), petition for cert. filed (U.S.

Sept. 6, 2001) (No. 01-6235).    Accordingly, Vargas’s sentence is

VACATED and this cause is REMANDED for resentencing.

     Vargas contends that his prior DWI conviction that resulted

in his increased sentence under 8 U.S.C. § 1326(b)(2) was an

element 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
                          No. 01-20047
                               -3-

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

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

contention is moot in light of the disposition we make of his

appeal.

     SENTENCE VACATED; REMANDED.
