U.S. v. Armendariz-Moreno

• Decision Date: 15 June 2009
• Docket Number: No. 07-40225.,07-40225.
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Armando ARMENDARIZ-MORENO, also known as Armando Moreno-Ortiz, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

571 F.3d 490

UNITED STATES of America, Plaintiff-Appellee, v. Armando ARMENDARIZ-MORENO, also known as Armando Moreno-Ortiz, Defendant-Appellant.

No. 07-40225.

United States Court of Appeals, Fifth Circuit.

June 15, 2009.

Paula Camille Offenhauser, James Lee Turner, Asst. U.S. Attorneys, Houston, TX, for Plaintiff-Appellee.

Marjorie A. Meyers, Timoteo E. Gomez, Fed. Pub. Defenders, Laura Fletcher Leavitt, Asst. Fed. Pub. Def., Houston, TX, for Defendant-Appellant.

Appeal from the United States District Court for the Southern District of Texas.

ON REMAND FROM THE SUPREME COURT

Before REAVLEY, BARKSDALE and GARZA, Circuit Judges.

PER CURIAM:

On December 12, 2007 this court affirmed the sentence of Armando Armendariz-Moreno (Armendariz) and rejected the objection to the 8 level enhancement of his offense level because of his prior conviction of unauthorized use of a motor vehicle in violation of Texas Penal Code § 31.07(a). (See Attached). As Armendariz conceded, the judgment was foreclosed by previous rulings of this circuit. See United States v. Galvan-Rodriguez, 169 F.3d 217 (5th Cir.1999).

The Supreme Court has now granted certiorari and remanded for consideration in the light of Begay v. United States, ___ U.S. ___, 128 S.Ct. 1581, 170 L.Ed.2d 490 (2008) and Chambers v. United States, ___ U.S. ___, 129 S.Ct. 687, 172 L.Ed.2d 484 (2009). Those opinions hold that the generic crime of violence or aggravated felony must itself involve purposeful, violent and aggressive conduct. The risk of physical force may exist where the defendant commits the offense of unauthorized use of a vehicle, but the crime itself has no essential element of violent and aggressive conduct.

It follows that the Armendariz sentence rests on a procedural error. The government agrees that the sentence must be vacated and the case remanded for resentencing.

Sentence Vacated. Case Remanded.

APPENDIX

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

                UNITED STATES of America, Plaintiff-Appellee
                v
                Armando ARMENDARIZ-MORENO
                also known as Armando Moreno-Ortiz, Defendant-Appellant
                

                              No. 07-40225
                          Conference Calendar.
                             Dec. 12, 2007.
                Appeal from the United States District
                                Court
                  for the Southern District of Texas.
                      USDC No. 1:06-CR-1029-ALL.
                

Before REAVLEY, BARKSDALE and GARZA, Circuit Judges.

PER CURIAM:^*

Armando Armendariz-Moreno (Armendariz) pleaded guilty to illegal reentry after deportation and after having been convicted of an aggravated felony.

On appeal, Armendariz challenges the district court's characterization of his prior Texas conviction of unauthorized use of a motor vehicle as an aggravated felony for sentencing purposes. Armendariz concedes that this issue is foreclosed, but he nevertheless seeks to preserve it for Supreme Court review in light of the Supreme Court's decision in Leocal v. Ashcroft, 543 U.S. 1 [125 S.Ct. 377, 160 L.Ed.2d 271] (2004). As Armendariz concedes, this issue is foreclosed. See Brieva-Perez v. Gonzales, 482 F.3d 356, 360-61 (5th Cir.2007); United States v. Galvan-Rodriguez, 169 F.3d 217, 219-20 (5th Cir.1999).

In light of Apprendi v. New Jersey, 530 U.S. 466 [120 S.Ct. 2348, 147 L.Ed.2d 435] (2000), Armendariz also challenges the...