                    IN THE UNITED STATES COURT OF APPEALS

                              FOR THE FIFTH CIRCUIT

                              _____________________

                                  No. 00-41118
                              _____________________



          UNITED STATES OF AMERICA


                                            Plaintiff - Appellee

               v.

          AMARO GARZA GARZA


                                            Defendant - Appellant

     _________________________________________________________________

                Appeal from the United States District Court
                     for the Southern District of Texas
                              No. L-00-CR-464-1
     _________________________________________________________________
                              February 27, 2002

     Before KING, Chief Judge, and REAVLEY and WIENER, Circuit Judges.

     PER CURIAM:*

          Defendant Amaro Garza-Garza appeals his sentence imposed by

     the district court for a violation of 8 U.S.C. § 1326.        For the

     following reasons, we AFFIRM.



     *
        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opinion should not be published and is not precedent except under the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.


                                        1
                      I.   Factual and Procedural History

          Amaro Garza-Garza pleaded guilty to illegal reentry after

     deportation, a violation of 8 U.S.C. § 1326(a).        Violations of

     § 1326(a) are generally punishable by up to two years in prison.1

     If the defendant was deported after being convicted of an

     aggravated felony, however, § 1326(b)(2) increases the maximum

     term of imprisonment to twenty years.2      The sentencing guideline

     applicable to § 1326 calls for a base offense level of eight.

     U.S. SENTENCING GUIDELINES MANUAL § 2L1.2(a) (1998).   This base



     1
        Section 1326(a) reads in relevant part:
               (a) [A]ny alien who –
                    (1) has been denied admission, excluded,
                    deported, or removed or has departed the
                    United States while an order of
                    exclusion, deportation, or removal is
                    outstanding, and thereafter
                    (2) enters, attempts to enter, or is at
                    any time found in, the United States,
                    unless . . . the Attorney General has
                    expressly consented to such alien’s
                    reapplying for admission . . .
               shall be fined under Title 18, or imprisoned
               not more than 2 years, or both.
8 U.S.C. § 1326(a) (1994).
     2
        Section 1326(b) reads in relevant part:
               (b) Notwithstanding subsection (a) of this
               section, in the case of any alien described
               in such subsection –
                    . . .
                    (2) whose removal was subsequent to a
                    conviction for commission of an
                    aggravated felony, such alien shall be
                    fined under such Title, imprisoned not
                    more than 20 years, or both.
                    . . .
8 U.S.C. § 1326(b) (1994).

                                        2
     offense level is increased by sixteen levels if the defendant has

     a prior aggravated-felony conviction.   Id. at § 2L1.2(b)(1)(A).

     In Garza-Garza’s case, the Presentence Investigation Report (the

     “PSR”) recommended a base offense level of eight, an increase of

     sixteen levels because of two prior aggravated-felony

     convictions, and a decrease of three levels because of Garza-

     Garza’s acceptance of responsibility, for a total offense level

     of twenty-one.   In support of the sixteen-level increase, the PSR

     listed Garza-Garza’s felony conviction for driving while

     intoxicated (“DWI”) and his felony conviction for cocaine

     possession.

          The district court adopted the findings of the PSR and

     sentenced Garza-Garza to seventy-seven months of imprisonment,

     three years of supervised release, and a special assessment of

     $100.3   Garza-Garza timely appeals his sentence, arguing that:

     (1) the district court improperly classified his felony DWI

     conviction as an aggravated felony and thus improperly enhanced

     his sentence, and (2) the district court improperly enhanced his

     sentence for a prior aggravated-felony conviction because his

     indictment for the reentry offense did not allege such a

     conviction.




     3
         This term of imprisonment is within the range applicable to an
offense level of twenty-one and a criminal history category of V. U.S.
SENTENCING GUIDELINES MANUAL Ch.5, Part A (sentencing table).

                                      3
      II.    Garza-Garza’s United States v. Chapa-Garza Claim

     Garza-Garza’s primary argument before this court is that the

district court improperly considered his felony DWI conviction to

be an aggravated felony and thus improperly enhanced his

sentence.     Because Garza-Garza raises this argument for the first

time on appeal, we review Garza-Garza’s sentence 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)

that was clear and obvious and (3) that affected the defendant’s

substantial rights.     United States v. Olano, 507 U.S. 725, 732

(1993).     When these elements are present, 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. (internal citations and quotations omitted).

     Under the sentencing guidelines applicable to illegal re-

entry convictions under § 1326, a sixteen-level enhancement is

proper if the defendant’s prior deportation followed a conviction

for an “aggravated felony.”     U.S. SENTENCING GUIDELINES MANUAL

§ 2L1.2(b)(1)(A).     The commentary to § 2L1.2 of the sentencing

guidelines adopts the definition of “aggravated felony” in 8

U.S.C. § 1101(a)(43).     Under that definition, “aggravated felony”

includes “a crime of violence.”        8 U.S.C. § 1101(a)(43)(F)

(1994).     At the time of Garza-Garza’s sentencing, this court’s

precedent suggested that Garza-Garza’s felony DWI conviction was



                                   4
     properly classified as an aggravated-felony conviction.      See

     Camacho-Marroquin v. I.N.S., 188 F.3d 649, 652 (5th Cir. 1999),

     opinion withdrawn and reh’g dismissed, 222 F.3d 1040 (2000)

     (determining that a felony DWI in Texas is a crime of violence

     and thus an aggravated felony); see also United States v.

     DeSantiago-Gonzalez, 207 F.3d 261, 264 (5th Cir. 2000) (holding

     that misdemeanor DWI’s are crimes of violence under a different

     sentencing guideline).   Consistent with this precedent, the PSR

     classified Garza-Garza’s felony DWI conviction as an aggravated-

     felony conviction and recommended an offense level increase of

     sixteen.4   The district court adopted the PSR’s recommendations.

     In light of Camacho-Marroquin and DeSantiago-Gonzalez, Garza-

     Garza did not challenge the sixteen-level enhancement in the

     district court.

          On March 1, 2001, after Garza-Garza’s sentencing, this court

     held that a felony DWI in Texas is not a crime of violence and,

     therefore, is not an aggravated felony under § 2L1.2(b)(1)(A) of

     the sentencing guidelines.   United States v. Chapa-Garza, 243

     F.3d 921, 927 (5th Cir. 2001).5   Thus, a prior felony DWI

     conviction cannot support an offense-level increase of sixteen in


     4
        In support of its recommended sixteen-level enhancement, the PSR
also listed Garza-Garza’s felony conviction for cocaine possession.
     5
        In August 2001, we denied the government’s petition for rehearing
in Chapa-Garza. Thus, the government’s request that this court defer its
decision in this case until it renders a decision on that petition for
rehearing is moot.

                                       5
     illegal re-entry cases.   Assuming that the district court in this

     case relied exclusively on Garza-Garza’s felony DWI conviction in

     adopting the PSR’s recommended sixteen-level enhancement, the

     district court, albeit understandably, committed a clear and

     obvious error.6   Furthermore, without a prior aggravated-felony

     conviction, Garza-Garza’s total offense level would have been

     ten: a base offense level of eight, a four-level increase for a

     prior “nonaggravated” felony conviction, and a two-level

     reduction for acceptance of responsibility.     U.S. SENTENCING

     GUIDELINES MANUAL §§ 2L1.2(a), (b)(1)(B) & 3E1.1(a).7   An offense

     level of ten corresponds to an imprisonment range of twenty-one

     to twenty-seven months.   Id. at Ch.5, Part A (sentencing table).

     In contrast, the offense level of twenty-one assigned to Garza-

     Garza corresponds to an imprisonment range of seventy to eighty-

     seven months, id., and the district court sentenced Garza-Garza

     to seventy-seven months of imprisonment.    Assuming Garza-Garza’s

     sentence resulted from the incorrect classification of his felony

     DWI conviction as an aggravated-felony conviction, the dramatic


     6
        It is not clear from the record whether the district court enhanced
Garza-Garza’s sentence because of his DWI conviction, his cocaine
conviction, or both. For purposes of our analysis, we give Garza-Garza the
benefit of the doubt and assume that the district court based the sixteen-
level enhancement exclusively on Garza-Garza’s DWI conviction.
     7
         A defendant with a total offense level of ten is entitled to a two-
level reduction for acceptance of responsibility. U.S. SENTENCING GUIDELINES
MANUAL § 3E1.1(a). A defendant with a total offense level greater than
sixteen, however, may qualify for a three-level reduction for acceptance of
responsibility. Id. at § 3E1.1(b).

                                       6
increase in the recommended imprisonment range and in Garza-

Garza’s actual term of imprisonment affected his substantial

rights.   United States v. Williamson, 183 F.3d 458, 464 (5th Cir.

1999) (concluding that a twofold increase in prison time affected

the defendant’s substantial rights).      Even faced with a clear and

obvious error that affected Garza-Garza’s substantial rights,

however, we will correct the error only if it seriously affects

the fairness, integrity, or public reputation of the judicial

proceedings.    Olano, 507 U.S. at 732.

     In addition to the felony DWI conviction, Garza-Garza was

convicted of possession of cocaine prior to deportation and

sentenced to six years of imprisonment.     This felony cocaine

conviction is an aggravated felony for purposes of the sixteen-

level enhancement under § 2L1.2(b)(1)(A) of the sentencing

guidelines.    United States v. Hinojosa-Lopez, 130 F.3d 691, 694

(5th Cir. 1997).    Thus, if we vacate Garza-Garza’s sentence and

remand for resentencing, the district court could permissibly

rely on Garza-Garza’s aggravated-felony cocaine conviction to

reinstate the sentence of seventy-seven months of imprisonment.

When reviewing for plain error, we uphold a defendant’s sentence

if the district court could reinstate the same sentence on remand

by relying on a reasonable application of the sentencing

guidelines.    United States v. Ravitch, 128 F.3d 865, 871 (5th

Cir. 1997).    Accordingly, the district court’s erroneous



                                  7
     classification of Garza-Garza’s felony DWI conviction did not

     seriously affect the fairness, integrity, or public reputation of

     the judicial proceedings in this case, and we decline to vacate

     Garza-Garza’s sentence on that ground.8

              III.   Garza-Garza’s Apprendi v. New Jersey Claim

           Citing Apprendi v. New Jersey, 530 U.S. 466 (2000), Garza-

     Garza argues that, because the indictment did not allege a prior

     aggravated-felony conviction, the district court erred in

     imposing a sentence in excess of the two-year statutory maximum

     sentence under 8 U.S.C. § 1326(a).9   Garza-Garza raised his

     Apprendi objection before the district court at sentencing.    We

     review de novo Garza-Garza’s challenge to the sufficiency of the



     8
        Garza-Garza argues that this court should not affirm his sentence
on an alternative ground because he had no opportunity at sentencing to
object to an enhancement based upon his cocaine conviction. This argument
is unpersuasive because the PSR listed the cocaine conviction in support of
its recommendation of the sixteen-level enhancement. Garza-Garza did not
object to that portion of the PSR.
     9
         The indictment reads:
                On or about December 16, 1999, in the
                Southern District of Texas and within the
                jurisdiction of the Court, Defendant, AMARO
                GARZA-GARZA, an alien who had previously been
                denied admission, excluded, deported, or
                removed, or has departed the United States
                while an order of exclusion, deportation or
                removal is outstanding, and having not
                obtained the consent of the Attorney General
                of the United States for reapplication by the
                Defendant for admission into the United
                States, thereafter entered the United States.
                In violation of Title 8, United States Code,
                Section 1326.

                                      8
    indictment and to the legality of the district court’s imposition

    of his sentence.   See United States v. Cabrera-Teran, 168 F.3d

    141, 143 (5th Cir. 1999) (reviewing de novo a challenge to the

    sufficiency of the indictment); see also United States v. A

    Female Juvenile, 103 F.3d 14, 15 n.1 (5th Cir. 1996) (reviewing

    de novo a challenge to the legality of the district court’s

    imposition of a criminal sentence).10

         In Almendarez-Torres v. United States, 523 U.S. 224, 226-27

    (1998), the Supreme Court held that an indictment in an illegal

    re-entry case need not allege a defendant’s prior aggravated-

    felony conviction in order for the district court to enhance the

    defendant’s sentence under § 1326(b)(2).11   Although the Court’s

    recent decision in Apprendi states that “it is arguable that

    Almendarez-Torres was incorrectly decided,” the Apprendi Court

    explicitly declined to overrule Almendarez-Torres.   Apprendi, 530

    U.S. at 489-90; see also United States v. Dabeit, 231 F.3d 979,

    984 (5th Cir. 2000) (noting that the Supreme Court in Apprendi

    “expressly declined to overrule Almendarez-Torres”).   Thus, we

    10
        The government argues that we should review Garza-Garza’s Apprendi
claim for plain error because Garza-Garza “never contested the adequacy of
the notice of the applicability of the statute inasmuch as the statute, 8
U.S.C. § 1326, was correctly cited in the indictment.” This argument fails
because “statutory citations may not stand in place of the inclusion of an
element of the crime.” Cabrera-Teran, 168 F.3d at 145. Thus, Garza-Garza
is entitled to de novo review concerning whether the indictment supports
his enhanced sentence.
    11
        Garza-Garza concedes that his Apprendi claim is foreclosed by the
Court’s holding in Almendarez-Torres. However, Garza-Garza raises the
claim in this court to preserve the issue for Supreme Court review.

                                     9
must apply the holding of Almendarez-Torres to Garza-Garza’s

claim “unless and until the Supreme Court itself determines to

overrule it.”   Dabeit, 231 F.3d at 984 (internal citations and

quotations omitted).   Accordingly, the district court did not err

in enhancing Garza-Garza’s sentence beyond the two-year statutory

maximum under § 1326(a) even though Garza-Garza’s prior

aggravated-felony conviction was not alleged in the indictment.

                          IV.   Conclusion

     For the foregoing reasons, we AFFIRM Garza-Garza’s sentence.




                                 10
