                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                 October 14, 2004

                                                          Charles R. Fulbruge III
                                                                  Clerk
                           No. 03-40966
                         Summary Calendar



UNITED STATES OF AMERICA,

                                    Plaintiff-Appellee,

versus

ROBERTO GOMEZ-VARGAS,

                                    Defendant-Appellant.

                      --------------------
          Appeal from the United States District Court
               for the Southern District of Texas
                    USDC No. L-03-CR-464-ALL
                      --------------------

Before GARZA, DeMOSS, and CLEMENT, Circuit Judges.

PER CURIAM:*

     Roberto Gomez-Vargas is appealing his sentence imposed

following his guilty plea conviction for attempted illegal

reentry into the United States following deportation.      Gomez

Vargas was sentenced to 77 months’ imprisonment to be followed by

a three-year term of supervised release.

     Gomez-Vargas argues that the district court plainly erred in

enhancing his offense level based on his prior conviction for a

crime of violence.   The Government argues that Gomez-Vargas may


     *
       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this opinion should not be published and is not precedent except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. 03-40966
                                  -2-

have waived his right to complain because he did not file any

objections to the presentence report.       The record does not

reflect that Gomez-Vargas intentionally relinquished his right to

object to the enhancement based on his prior conviction and,

thus, he has not waived his right to plain error review.          United

States v. Musquiz, 45 F.3d 927, 931 (5th Cir. 1995).

     Gomez argues that his aggravated battery offense did not

necessarily require proof of an element involving the intentional

use or threatened use of physical force against a person and,

thus, it is not a crime of violence within the meaning of

U.S.S.G. § 2L1.2(b)(1)(A).    The sixteen-level enhancement is to

be made only if the prior offense is a violation of a statute

that requires as proof an element of “the use, attempted use, or

threatened use of physical force against the person of another.”

Calderon,      F.3d     , No. 02-20331, 2004 WL 1888407 at *1 (5th

Cir. Aug. 24, 2004).   The Illinois aggravated battery statute

provides for the commission of the offense in a number of

different ways, some of which do not require the use of physical

force against a person.    See 720 ILCS 5/12-4 (a-d).     The record

contains no evidence of the factual basis supporting Gomez-

Vargas’ conviction for aggravated battery.       However, even if

physical force was used against a person, the enhancement

constituted plain error because the Illinois statute did not

require the use of such force to be proved as an element of the

offense.    Calderon, 2004 WL 1888407 at *1; United States v.
                            No. 03-40966
                                 -3-

Gracia-Cantu, 302 F.3d 308, 313 (5th Cir. 2002).     The sentence

imposed is VACATED and the case is REMANDED for resentencing in

accord with this opinion.

     Gomez-Vargas acknowledges that his argument that the felony

and aggravated felony provisions of 8 U.S.C. § 1326(b) are

unconstitutional is foreclosed by prior precedent.     See United

States v. Hernandez-Avalos, 251 F.3d 505, 507 & n.1 (5th Cir.

2001).   Thus, his conviction is AFFIRMED.

     Gomez argues that the judgment should be corrected under

FED. R. CRIM. P. 36 because it reflects that he was convicted of

reentry of a deported alien when he actually pleaded guilty to

the attempted illegal reentry into the United States following

deportation.   The Government does not oppose this request.   Gomez

was charged with attempting to enter into the United States.

Therefore, the district court is ORDERED to AMEND the judgment to

reflect the actual offense of conviction.

     CONVICTION AFFIRMED; SENTENCE VACATED AND CASE REMANDED FOR

RESENTENCING AND AMENDMENT OF JUDGMENT.
                           No. 03-40966
                                -4-



EMILIO M. GARZA, Circuit Judge, dissenting in part:

      For the reasons expressed in my dissents in Vargas-Duran,

Sarmiento-Funes and Calderon-Pena, I continue to believe that

Vargas-Duran, Sarmiento-Funes and Calderon-Pena were wrongly

decided.   See United States v. Vargas-Duran, 356 F.3d 598, 610-16

(5th Cir. 2004) (Garza, J. dissenting); United States v.

Calderon-Pena, ___ F.3d ___, No. 02-20331, 2004 WL 1888407 (5th

Cir. Aug. 24, 2004) (Garza, J. dissenting) United States v.

Sarmiento-Funes, 374 F.3d 336, 346-47 (5th Cir. 2004) (Garza, J.

dissenting).
