                                                             United States Court of Appeals
                                                                      Fifth Circuit
                                                                     F I L E D
                       UNITED STATES COURT OF APPEALS
                                FIFTH CIRCUIT                         June 14, 2007

                                                                  Charles R. Fulbruge III
                                No. 06-41020                              Clerk
                              Summary Calendar


                         UNITED STATES OF AMERICA,

                                                      Plaintiff-Appellee,

                                   versus

                         HUGO VICTOR CANO-ESPARZA,

                                                     Defendant-Appellant.


             Appeal from the United States District Court
                  for the Southern District of Texas
                            (7:06-CR-53-1)


Before DAVIS, BARKSDALE, and BENAVIDES, Circuit Judges.

PER CURIAM:*

     Following     a    guilty-plea   conviction    for   illegal      reentry

following deportation, Hugo Victor Cano-Esparza was sentenced,

inter alia, to 46 months imprisonment after the district court, in

computing the advisory Guidelines sentencing range, imposed a

sentencing enhancement for Cano-Esparza’s having been previously

deported following a “crime of violence”.            Cano-Esparza claims:

the district court erred in finding his prior state felony-assault

conviction     constituted    a   crime   of   violence   under    Guidelines



     *
       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this opinion should not be published and is not precedent except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.
§ 2L1.2(b)(1)(A)(ii); and the sentencing-enhancement statute, 8

U.S.C. § 1326(b), is unconstitutional.

      Although Cano-Esparza objected to the enhancement in district

court, he did not do so on the basis presented here.               Therefore,

our review is only for plain error.       See United States v. Musa, 45

F.3d 922, 924 n.5 (5th Cir. 1995) (“To preserve an issue for review

on   appeal,   the   defendant’s    objection    must    fully    apprise   the

[district court] of the grounds for the objection so that evidence

can be taken and argument received on the issue.”); United States

v. Ochoa-Cruz, 442 F.3d 865, 866 (5th Cir. 2006) (plain error

exists when clear or obvious error affects defendant’s substantial

rights).

      Section 2L1.2(b)(1)(A)(ii) authorizes a sentencing enhancement

when a defendant was previously deported after committing a “crime

of violence”.      That section’s application note defines a crime of

violence as, inter alia, any state or federal offense “that has as

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

force against the person of another”. U.S.S.G. § 2L1.2, comment.

n.1(B)(iii) (emphasis added).

      Cano-Esparza’s prior assault offense violated Texas Penal Code

§    22.01(a)(1)     and   (b)(2)   (Vernon     1999),    which    proscribes

“intentionally, knowingly, or recklessly caus[ing or threatening]

bodily injury to another”.      Because use of force is not an element

of Texas’ assault provision, the district court committed a clear



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or obvious error in looking to the conduct underlying the offense

to determine it constituted a crime of violence.             United States v.

Villegas-Hernandez, 468 F.3d 874, 882 (5th Cir. 2006) (use of force

is not an element of TEX. PENAL CODE § 22.01(a)(1)), cert denied, 127

S. Ct. 1351 (2007); see also United States v. Calderon-Pena, 383

F.3d 254,    257   (5th   Cir.   2004)    (“Although   the    actual   conduct

described in the indictment[] could be construed to involve the use

of physical force .... [t]he [proper] inquiry ... looks to the

elements of the crime, not to the defendant’s actual conduct in

committing it”);     United States v. Gonzalez-Chavez, 432 F.3d 334,

337 (5th Cir. 2005) (only if the statute of conviction contains

multiple, disjunctive elements, one or more of which involves the

use or threatened use of force as an element, may a court look to

underlying conduct to determine which statutory alternative applies

to the defendant’s conviction).           Obviously, this error affected

Cano-Esparza’s substantial rights.           Therefore, his sentence is

vacated and this case is remanded for resentencing.            See Villegas-

Hernandez, 468 F.3d at 885; United States v. Villegas, 404 F.3d

355, 364 (5th Cir. 2005); see also United States v. Garza-Lopez,

410 F.3d 268, 275 (5th Cir.), cert. denied, 126 S. Ct. 298 (2005).

     In   challenging     the    constitutionality     of    his   sentencing

enhancement, Cano-Esparza contends prior felony convictions must be

treated as elements of the offense found by a jury, rather than as

sentencing   factors.      Cano-Esparza     concedes   this     challenge   is


                                      3
foreclosed by Almendarez-Torres v. United States, 523 U.S. 224, 235

(1998).   He raises it here only to preserve it for further review.

               CONVICTION AFFIRMED; SENTENCE VACATED; REMANDED.




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