United States v. Gomez-Vargas

* 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this opinion should not be published and is not precedent except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.
United States Court of Appeals
Fifth Circuit
F I L E D
October 14, 2004
Charles R. Fulbruge III
Clerk
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 03-40966
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ROBERTO GOMEZ-VARGAS,
Defendant-Appellant.
--------------------
Appeal from the United States District Court
for the Southern District of Texas
USDC No. L-03-CR-464-ALL
--------------------
Before GARZA, DeMOSS, and CLEMENT, Circuit Judges.
PER CURIAM:*
Roberto Gomez-Vargas is appealing his sentence imposed
following his guilty plea conviction for attempted illegal
reentry into the United States following deportation. Gomez
Vargas was sentenced to 77 months’ imprisonment to be followed by
a three-year term of supervised release.
Gomez-Vargas argues that the district court plainly erred in
enhancing his offense level based on his prior conviction for a
crime of violence. The Government argues that Gomez-Vargas may

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have waived his right to complain because he did not file any
objections to the presentence report. The record does not
reflect that Gomez-Vargas intentionally relinquished his right to
object to the enhancement based on his prior conviction and,
thus, he has not waived his right to plain error review. United
States v. Musquiz, 45 F.3d 927, 931 (5th Cir. 1995).
Gomez argues that his aggravated battery offense did not
necessarily require proof of an element involving the intentional
use or threatened use of physical force against a person and,
thus, it is not a crime of violence within the meaning of
U.S.S.G. § 2L1.2(b)(1)(A). The sixteen-level enhancement is to
be made only if the prior offense is a violation of a statute
that requires as proof an element of “the use, attempted use, or
threatened use of physical force against the person of another.”
Calderon, F.3d , No. 02-20331, 2004 WL 1888407 at *1 (5th
Cir. Aug. 24, 2004). The Illinois aggravated battery statute
provides for the commission of the offense in a number of
different ways, some of which do not require the use of physical
force against a person. See 720 ILCS 5/12-4 (a-d). The record
contains no evidence of the factual basis supporting Gomez-
Vargas’ conviction for aggravated battery. However, even if
physical force was used against a person, the enhancement
constituted plain error because the Illinois statute did not
require the use of such force to be proved as an element of the
offense. Calderon, 2004 WL 1888407 at *1; United States v.

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Gracia-Cantu, 302 F.3d 308, 313 (5th Cir. 2002). The sentence
imposed is VACATED and the case is REMANDED for resentencing in
accord with this opinion.
Gomez-Vargas acknowledges that his argument that the felony
and aggravated felony provisions of 8 U.S.C. § 1326(b) are
unconstitutional is foreclosed by prior precedent. See United
States v. Hernandez-Avalos, 251 F.3d 505, 507 & n.1 (5th Cir.
2001). Thus, his conviction is AFFIRMED.
Gomez argues that the judgment should be corrected under
FED. R. CRIM. P. 36 because it reflects that he was convicted of
reentry of a deported alien when he actually pleaded guilty to
the attempted illegal reentry into the United States following
deportation. The Government does not oppose this request. Gomez
was charged with attempting to enter into the United States.
Therefore, the district court is ORDERED to AMEND the judgment to
reflect the actual offense of conviction.
CONVICTION AFFIRMED; SENTENCE VACATED AND CASE REMANDED FOR
RESENTENCING AND AMENDMENT OF JUDGMENT.

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No. 03-40966
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EMILIO M. GARZA, Circuit Judge, dissenting in part:
For the reasons expressed in my dissents in Vargas-Duran,
Sarmiento-Funes and Calderon-Pena, I continue to believe that
Vargas-Duran, Sarmiento-Funes and Calderon-Pena were wrongly
decided. See United States v. Vargas-Duran, 356 F.3d 598, 610-16
(5th Cir. 2004) (Garza, J. dissenting); United States v.
Calderon-Pena, ___ F.3d ___, No. 02-20331, 2004 WL 1888407 (5th
Cir. Aug. 24, 2004) (Garza, J. dissenting) United States v.
Sarmiento-Funes, 374 F.3d 336, 346-47 (5th Cir. 2004) (Garza, J.
dissenting).

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