                                                          United States Court of Appeals
                                                                   Fifth Circuit
                                                                 F I L E D
                 IN THE UNITED STATES COURT OF APPEALS           November 5, 2003

                         FOR THE FIFTH CIRCUIT              Charles R. Fulbruge III
                         _____________________                      Clerk

                              No. 02-41444
                         _____________________

UNITED STATES OF AMERICA,

                                                    Plaintiff-Appellee,

                                  versus

RIGOBERTO LUNA-MONTOYA,

                                                    Defendant-Appellant.


_________________________________________________________________

           Appeal from the United States District Court
                for the Southern District of Texas
                     USDC No. L-02-CR-753-ALL
_________________________________________________________________

Before JOLLY, SMITH and EMILIO M. GARZA, Circuit Judges.

PER CURIAM:1

     Rigoberto     Luna-Montoya     appeals   the     district     court’s

determination that his Texas conviction for theft from a person was

a “crime of violence” for purposes of assessing a sixteen-level

sentencing enhancement under § 2L1.2(b)(1)(A)(ii) of the 2001

version of the United States Sentencing Guidelines.        Luna-Montoya

contends that his prior conviction for theft from a person is not

a “crime of violence” for these purposes since it does not have as



     1
      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this opinion should not be published and is not precedent except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 for in 5th CIR. R. 47.5.4.
an element the intentional use of force against a person.2      We

agree.

     Luna-Montoya, a Mexico citizen and national, was discovered in

the United States by Border Patrol Agents in Texas on May 4, 2002.

 Having been previously deported from the United States on March

31, 1999, Luna-Montoya was charged with being found unlawfully and

knowingly present in the United States after deportation, in

violation of 8 U.S.C. § 1326(a) and (b)(2).   He subsequently pled

guilty to this charge.   At sentencing, the district court accepted

the presentence report recommending a sixteen-level enhancement to

Luna-Montoya’s base offense level of eight on the grounds that

Luna-Montoya’s prior conviction of theft from a person3 under Texas

state law constituted a “crime of violence” under U.S.S.G. §

2L1.2(b)(1)(A)(ii).   Notably, Luna-Montoya did not object to the


     2
      Luna-Montoya also contends, solely for the purpose of
preserving the issue for further appeal, that the "aggravated
felony" provision of 8 U.S.C. § 1326(b)(2) is unconstitutional in
the light of the Supreme Court's decision in Apprendi v. New
Jersey, 530 U.S. 466 (2000). He forthrightly concedes, however,
that this argument is foreclosed by Almendarez-Torres v. United
States, 523 U.S. 224 (1998), which Apprendi expressly declined to
overrule. See Apprendi, 530 U.S. at 489-90. Accordingly, we need
not consider this matter any further. See United States v. Dabeit,
231 F.3d 979, 984 (5th Cir. 2000) ("'The Supreme Court has left no
doubt that as a constitutionally inferior court, we are compelled
to follow faithfully a directly controlling Supreme Court precedent
unless and until the Supreme Court itself determines to overrule
it.'") (quoting Hopwood v. Texas, 84 F.3d 720, 722 (5th Cir.
1996)).
     3
      Prior to being deported in 1999, Luna-Montoya had pled guilty
to theft from a person in Texas and on November 6, 1998, he was
sentenced to six months’ confinement there. Immediately following
his release from prison, he was deported to his native Mexico.

                                 2
report or to the increased offense level. After a three-level

reduction for acceptance of responsibility, this left Luna-Montoya

with    a   total    offense     level   of   twenty-one   and   a   guideline

imprisonment range of seventy to eighty-seven months.                The judge

ultimately sentenced Luna-Montoya to seventy months’ imprisonment.

       On appeal, Luna-Montoya contends that the district court erred

in categorizing his earlier conviction of theft from a person as a

“crime of violence.” Ordinarily, a district court’s interpretation

and application of the Sentencing Guidelines is reviewed de novo.

United States v. Charles, 301 F.3d 309, 312-13 (5th Cir. 2002)(en

banc).      Because Luna-Montoya did not raise this objection below,

however, this Court reviews the actions of the district court for

plain error.        United States v. Calverley, 37 F.3d 160, 162 (5th

Cir. 1994) (en banc).          To establish plain error, a petitioner must

show that there was an error; the error was clear and obvious; and

the error materially affected his substantial rights.                   United

States v. Olano, 507 U.S. 725, 732 (1993).                 When all of these

elements are present, we may exercise our discretion to correct the

error if it “seriously affect[s] the fairness, integrity, or public

reputation of judicial proceedings.” Id. (internal quotation marks

and citation omitted).

       The first question before this court is thus whether the

district      court’s    classification       of   Luna-Montoya’s      earlier

conviction constitutes error.            We find that it does.       The 2001

Sentencing Guidelines specify that a prior offense qualifies as a

                                         3
“crime of violence” for purposes of the sixteen-level sentencing

enhancement if it is either “an offense under federal, state, or

local law that has as an element the use, attempted use, or

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

an offense enumerated in Application Note 1(B)(ii)(II).    U.S.S.G.

§ 2L1.2, cmt. n. 1(B)(ii); see United States v. Rayo-Valdez, 302

F.3d 314, 316 (5th Cir. 2002)(“The language of 2L1.2 says that crime

of violence means that which is in subparagraph I, and includes

that which is in subparagraph II.”).    Theft from a person is not

one of the offenses   enumerated in Application Note 1(B)(ii)(II).4

Accordingly, theft from a person is only a “crime of violence”

under § 2L1.2(b)(1)(A)(ii) if it “has as an element the use,

attempted use, or threatened use of physical force against the

person of another.”

     In analyzing this issue, we need not consider the facts

underlying Luna-Montoya’s previous conviction of theft from a

person.   Instead, our duty is to “look only to the fact of the

conviction and the statutory definition of the prior offense” under

Texas law.   Taylor v. United States, 495 U.S. 575, 602 (1990).

“Congress did not intend sentencing hearings to become retrials of

the underlying conduct involved in the defendant’s prior federal or



     4
      The   enumerated   offenses   are   "murder,    manslaughter,
kidnapping, aggravated assault, forcible sex offenses (including
sexual abuse of a minor), robbery, arson, extortion, extortionate
extension of credit, and burglary of a dwelling." U.S.S.G. § 2L1.2,
cmt. n. 1(B)(ii).

                                 4
state convictions.”     United States v. Velasquez-Overa, 100 F.3d

418, 421 (5th Cir. 1996).

     The Texas theft from a person statute under which Luna-Montoya

was convicted provides in relevant part:

     (a) A person commits an offense if he unlawfully appropriates
     property with intent to deprive the owner of property.

     (b) Appropriation of property is unlawful if:
     (1) it is without the owner’s effective consent
     ...
     (e) an offense under this section is:
     (4)a state jail felony if:
     ...
     (B) regardless of value, the property is stolen from the
     person of another.

TEX. PENAL CODE ANN. § 31.03.

     Notably, nothing in the Texas statutory definition of theft

from a person indicates that “the use, attempted use, or threatened

use of physical force against the person of another” is an element

of the crime.   Accordingly, we find that the district court erred

in determining that this offense constituted a “crime of violence”

for purposes of assessing a sixteen-level enhancement.

     Under plain error review, however, a mere finding of error is

not enough to reverse the decision of the district court.       For an

error to constitute reversible error, this Court must also conclude

that the error was “clear and obvious” and that it “affected [Luna-

Montoya’s] substantive rights.” Olano, 507 U.S. at 732.          Duly

noting this, the government concedes the fact that the district

court   committed   error   in   classifying   Luna-Montoya’s    prior

conviction as a crime of violence. It contends, however, that this

                                  5
fact does not warrant reversal since the district court’s error was

not clear and obvious.      We disagree.

     In determining a sentence, courts are “bound to follow each

sentencing guideline and accompanying policy statements.”                  United

States v. Urias-Escobar, 281 F.3d 165, 167 (5th Cir.2002) (citing

Mistretta v. United States, 488 U.S. 361, 391 (1989), and Williams

v. United States, 503 U.S. 193, 199-201 (1992)).             The language of

the relevant guideline here is clear and unambiguous: In order for

an offense to be classified as a “crime of violence,” it must “have

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

force    against     the     person        of   another.”          U.S.S.G.     §

2L1.2(b)(1)(A)(ii).      Moreover, our prior case law has consistently

indicated that, in analyzing whether the use, attempted use or

threatened use of physical force is an element of a particular

offense, a court looks only at the statutory definition of the

prior offense.     See, e.g., United States v. Shelton, 325 F.3d 553,

558 n.5 (5th Cir. 2003); Velasquez-Overa, 100 F.3d at 421.                    The

offense of theft from a person as defined by Texas law plainly does

not have such an element.             Accordingly, the district court’s

finding that theft from a person constituted a crime of violence

for purposes of § 2L1.2(b)(1)(A)(ii) was clearly and obviously

erroneous.

     Despite the clear language of the guideline and consistent

direction from this Court on the subject of how this guideline

should   be   applied,     the   government      asserts    that    this   error

                                       6
nevertheless cannot be plain since no court in any circuit has

previously ruled on the question of whether theft from a person

under Texas law is a “crime of violence” for purposes of U.S.S.G.

§    2L1.2(b)(1)(A)(ii).           This    argument,         however,      ignores     the

established principle that an error may be plain despite the fact

that the precise underlying legal issue has never been addressed by

a court.     See United States v. Spruill, 292 F.3d 207, 215 n.10 (5th

Cir. 2002) (noting that the fact that a particular factual and

legal scenario has not been addressed in a reported opinion “does

not preclude the asserted error . . . from being sufficiently clear

or   plain     to    authorize    vacation      of    the    conviction        on   direct

appeal.”).          What is more, we have applied this principle in a

nearly identical context before.               For example, in United States v.

Gracia-Cantu, 302 F.3d 308, 312-13 (5th Cir. 2002), we found plain

error in a district court’s determination that injury to a child

constituted a “crime of violence,” notwithstanding the fact that

there was no prior circuit opinion addressing this specific matter.

Accordingly, the government’s argument to this end is without

merit.

       Finally, on the question of whether the error made by the

district court affected Luna-Montoya’s substantial rights, this

court    has    previously       found    plain      error    where     the    incorrect

application         of   sentencing   guidelines       resulted       in   a   “dramatic

increase” in the recommended imprisonment range and the actual term

of imprisonment imposed.              See, e.g.,       United States v. Gracia-

                                           7
Cantu, 302 F.3d 308, 313 (5th Cir. 2002); United States v. Alarcon,

261 F.3d 416, 423 (5th Cir. 2001); United States v. Aderholt, 87

F.3d 740, 744 (5th Cir. 1996).          Here, without the sixteen-level

increase,   Luna-Montoya   would   have    been   subject   to    a    term   of

imprisonment between twenty-one and twenty-seven months.               With the

sixteen-level increase, Luna-Montoya’s recommended sentence was

between seventy and eighty-seven months, and he was actually

sentenced to seventy months’ imprisonment.           This difference in

sentence is the same difference in sentence that this court found

to be a “dramatic increase” that “affected [the defendant’s]

substantial   rights”   and   “seriously     affect[ed]     the       fairness,

integrity, or public reputation of the judicial proceedings” in

Gracia-Cantu.    302 F.3d at 313.           See   also United States v.

Williamson, 183 F.3d 458, 464 (5th Cir. 1999)(finding that a two-

fold increase in prison time affected the defendant’s substantial

rights). Accordingly, we find that the district court’s error here

affected Luna-Montoya’s substantial rights, and we exercise our

discretion to correct it.

     Having found that the district court committed error, that the

error was clear and obvious, and that it affected Luna-Montoya’s

substantial rights, we conclude that the district court’s sixteen-

level enhancement of Luna-Montoya’s sentence constituted plain

error.   Therefore, we VACATE the sentence imposed by the district

court and REMAND with instructions to resentence Luna-Montoya in a

manner not inconsistent with this opinion.

                                    8
                                      VACATED AND REMANDED.5




5
 Judge Garza concurs in the judgment only.

                           9
