                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                 October 6, 2004

                                                         Charles R. Fulbruge III
                                                                 Clerk
                           No. 03-41728
                         Summary Calendar


UNITED STATES OF AMERICA,

                            Plaintiff-Appellee,

versus

MAURICIO MATUTE-GALDAMEZ,

                            Defendant-Appellant.

                       --------------------
           Appeal from the United States District Court
                for the Southern District of Texas
                      USDC No. M-03-CR-853-1
                       --------------------

Before EMILIO M. GARZA, DeMOSS, and CLEMENT, Circuit Judges.

PER CURIAM:*

     Mauricio Matute-Galdamez challenges his conviction and

sentence for having been found unlawfully in the United States

subsequent to deportation, a violation of 8 U.S.C. § 1326(b)(2).

As an initial matter, Matute-Galdamez argues that the “felony”

and “aggravated felony” provisions of § 1326(b)(1) and (2) are

unconstitutional in light of Apprendi v. New Jersey, 530 U.S. 466

(2000).   Matute-Galdamez concedes that this issue is foreclosed

by Almendarez-Torres v. United States, 523 U.S. 224, 235 (1998),

but he seeks to preserve it for further review.    This court must

     *
       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this opinion should not be published and is not precedent except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. 03-41728
                                 -2-

follow the precedent in Almendarez-Torres “unless and until the

Supreme Court itself determines to overrule it.”    Hopwood v.

State of Tex., 84 F.3d 720, 722 (5th Cir. 1996).    Matute-

Galdamez’s conviction is AFFIRMED.

     Matute-Galdamez argues that the district court incorrectly

increased his base offense level by 16 levels on the basis of his

prior conviction for aggravated sexual battery, an offense the

court deemed to be a crime of violence within the meaning of

U.S.S.G. § 2L1.2.   Because Matute-Galdamez raises this argument

for the first time on appeal, the sentence imposed by the

district court, based on the enhancement, should be reviewed

under the plain error standard.    See United States v.

Gracia-Cantu, 302 F.3d 308, 310 (5th Cir. 2002).

     Matute-Galdamez argues that KAN. STAT. ANN. § 21-3518 (2000),

aggravated sexual battery, is not a crime of violence.      A crime

of violence is defined as (I) “an offense . . . that has an

element the use, attempted use, or threatened use of physical

force against the person of another; and (II) includes . . .

forcible sex offenses.”    U.S.S.G. § 2L1.2, comment. (n.

1(B)(ii)(I) and (II)).    The use of force “requires that a

defendant intentionally avail himself of that force.”       United

States v. Vargas-Duran, 356 F.3d 598, 599 (5th Cir. 2004).      The

question presented by this case is whether a sexual touching when

accompanied by an act of coercion or the knowledge that the

victim did not have the capacity to consent to the sexual act is
                             No. 03-41728
                                  -3-

a crime of violence.    In interpreting a similar Missouri sexual

assault statute, this court held that such an act does not

require the use of physical force against the victim as required

under Vargas-Duran.     United States v. Sarmiento-Funes, 374 F.3d

336, 339-42 (5th Cir. 2004).    The reasoning of Sarmiento-Funes is

binding in this case because the Kansas statute also allows for

conviction for sexual intercourse “to which the victim assents,

though that assent is a legal nullity, such as when it is the

product of deception or a judgment impaired by intoxication.”

Id. at 341.

     There is no foundation for the imposition of a 16-level

enhancement because Matute-Galdamez’s prior offense does not fall

within the sentencing guidelines’ definition of a crime of

violence.     The error is plain and must be corrected because the

erroneous sentence affects Matute-Galdamez’s substantial rights

and impugns the fairness and integrity of judicial proceedings.

See Gracia-Cantu, 302 F.3d at 313.     Accordingly, Matute-

Galdamez’s sentence is VACATED and the case is REMANDED to the

district court for resentencing in conformity with Sarmiento-

Funes.

     CONVICTION AFFIRMED; SENTENCE VACATED and REMANDED FOR

RESENTENCING.
                          No. 03-41728
                               -4-

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

      For the reasons expressed in my dissents in Vargas-Duran

and Sarmiento-Funes, I continue to believe that Vargas-Duran and

Sarmiento-Funes were wrongly decided.    See United States v.

Vargas-Duran, 356 F.3d 598, 610-16 (5th Cir. 2004) (Garza, J.

dissenting); United States v. Sarmiento-Funes, 374 F.3d 336, 346-

47 (5th Cir. 2004) (Garza, J. dissenting).
