United States v. Lopez-Hernandez

PER CURIAM:

* Jose Luis Lopez-Hernandez (Lopez) 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 . As an initial matter, Lopez 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 , 120 S.Ct. 2348 , 147 L.Ed.2d 435 (2000). Lopez concedes that this issue is foreclosed by Almendarez-Torres v. United States, 523 U.S. 224, 235 , 118 S.Ct. 1219 , 140 L.Ed.2d 350 (1998), but he seeks to preserve it for further review. This court must follow the precedent in Almendarez-Torres “unless and until the Supreme Court itself determines to overrule it.”

United States v. Dabeit, 231 F.3d 979, 984 (5th Cir.2000) (internal quotation marks and citation omitted).

Lopez also argues that the district court should have suppressed his prior deportation as a violation of due process. This argument is foreclosed by United States v. Benitez-Villafuerte, 186 F.3d 651 (5th Cir.1999). Lopez’s conviction is AFFIRMED.

Lopez argues that the district court incorrectly increased his base offense level by 16 levels on the basis of his prior conviction in Georgia for family violence battery, an offense the district court deemed to be a crime of violence within the meaning of U.S.S.G. § 2L1.2. Because Lopez raises this argument for the first time on appeal, the sentence imposed by the district court, based on the adjustment, should be reviewed under the plain error standard.

See United States v. Gracia-Cantu, 302 F.3d 308, 313 (5th Cir.2002).

Lopez argues that Ga.Code Ann. § 16-5- 23.1(f), family violence battery, is not a crime of violence. The offense is defined as “intentionally causfing] substantial physical harm or visible bodily harm to another” person who is a family member. Ga.Code Ann. § 16-5-23.1(a), (f). 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.” U.S.S.G. § 2L1.2, comment, (n. l(B)(ii)(I)). The use of force “requires that a defendant intentionally avail himself of that force.”

United States v. Vargas-Duran, 356 F.3d 598, 602 (5th Cir.2004).

The Georgia offense is results-oriented and does not contain a requirement that the offender apply force, but rather, leaves open the possibility that harm to the victim might result from omission or from the actions of another person or animal controlled by the offender.

** Therefore, it does not qualify for the 16-level adjustment under § 2L1.2.

United States v. Calderon-Pena, 383 F.3d 254, 259-60 (5th Cir.2004)(en banc);

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

*986 The error is plain and must be corrected because the erroneous sentence affects Lopez’s substantial rights and impugns the fairness and integrity of judicial proceedings.

See Gracia-Cantu, 302 F.3d at 313 . Accordingly, Lopez’s sentence is VACATED and the case is REMANDED to the distric2t court for resentencing in accordance with Calderon-Pena and Vargas-Duran .

CONVICTION AFFIRMED; SENTENCE VACATED and REMANDED FOR RESENTENCING.

* 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.

** See J.A.T. v. State, 133 Ga.App. 922, 923-24 , 212 S.E.2d 879 (1975)(siccing a dog on another amounts to battery).