                  IN THE UNITED STATES COURT OF APPEALS
                                FOR THE FIFTH CIRCUIT



                                       No. 01-50024
                                     Summary Calendar



UNITED STATES OF AMERICA,
                                                            Plaintiff-Appellee,
                                             versus
FRANCISCO FLORES-MEZA,
                                                            Defendant-Appellant.

                  __________________________________________

                      Appeal from the United States District Court
                          for the Western District of Texas
                         USDC No. EP-00-CR-1002-ALL-H
                   _________________________________________
                                  October 31, 2001

Before POLITZ, WIENER, and PARKER, Circuit Judges.

PER CURIAM:*
       Francisco Flores-Meza appeals the 46-month term of imprisonment imposed

following his conviction of being found in the United States following removal, in

violation of 8 U.S.C. § 1326. He contends that the district court erred by increasing

his offense level 16 levels pursuant to U.S.S.G. § 2L1.2(b)(1)(A) based on his prior
felony conviction of driving while intoxicated (“DWI”). He notes that under this

       *
        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 R. 47.5, the court has determined that this opinion should not be
published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
court’s decision in United States v. Chapa-Garza1 that a Texas felony DWI
conviction is not a “crime of violence” as defined in 18 U.S.C. § 16(b) and thus is

not an aggravated felony for the purpose of a 16-level adjustment under U.S.S.G.

§ 2L1.2(b)(1)(A). The Government has filed an unopposed motion to remand for
resentencing acknowledging that the district court, which did not have the benefit of

Chapa-Garza when it sentenced Flores-Meza, erred in applying the 16-level

adjustment. The motion is GRANTED.

       Flores-Meza also maintains that the district court erred by enhancing his
sentence based on his prior aggravated felony conviction because the fact of that
conviction was not alleged in his indictment nor proved beyond a reasonable doubt.
Flores-Meza’s contention is foreclosed by Almendarez-Torres v. United States2 and

is moot in light of the resolution of his previous argument.
       The Government’s motion to remand is GRANTED, the sentence is

VACATED, and this case is REMANDED for resentencing in light of Chapa-
Garza.




       1
        243 F.3d 921 (5th Cir. 2001), rehearing and rehearing en banc denied, 262 F.3d 479 (5th
Cir. 2001).
       2
         523 U.S. 224 (1998).
                                               2
