               IN THE UNITED STATES COURT OF APPEALS

                           FOR THE FIFTH CIRCUIT



                                  No. 00-50860
                                Summary Calendar


UNITED STATES OF AMERICA,

                                                         Plaintiff-Appellee,

                                      versus

MARTIN GARCIA-GARCIA,

                                                         Defendant-Appellant.



                   Appeals from the United States District Court
                        for the Western District of Texas
                          USDC No. A-00-CR-79-1-SS

                                  May 17, 2002

Before POLITZ, STEWART, and DENNIS, Circuit Judges.

PER CURIAM:*

      Martin Garcia-Garcia appeals his sentence following a guilty plea to illegal



      *
          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should not be published and is not precedent except under the limited circumstances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.
reentry into the United States after having been previously deported. He asserts that

the district court erred by applying a 16-level increase to his offense level based on a

prior aggravated felony conviction, contending that none of his prior convictions

qualified as an aggravated felony under 8 U.S.C. § 1101(a)(43). Concluding that

Garcia has no previous aggravated felony convictions, we must vacate the sentence and

remand for re-sentencing.

      As part of his guilty plea, Garcia signed a waiver of appeal which precludes him

from appealing his plea unless he can demonstrate that it was not knowing and

voluntary. The government has explicitly elected not to enforce the waiver and we

therefore address the inquiry whether Garcia’s sentence should be vacated.1

      To qualify as an aggravated felony for purposes of U.S.S.G. § 2L1.2(b)(1)(A),

Garcia’s prior offense must be “a crime of violence . . . for which the term of

imprisonment [is] at least one year” or a “burglary offense for which the term of

imprisonment [is] at least one year.”2 “The phrase ‘term of imprisonment’ refers to

‘the period of incarceration or confinement ordered by a court of law regardless of any




      1
          United States v. Rhodes, 253 F.3d 800, 804 (5th Cir. 2001).
      2
          8 U.S.C. § 1101(a)(43).
                                           2
suspension of the imposition or execution of that imprisonment.’”3 Garcia has two prior

convictions upon which the enhancement potentially could have been predicated. He

previously was convicted of burglary of a vehicle for which he was sentenced to less

than one year of imprisonment, and for driving while intoxicated for which he was

sentenced to over one year of imprisonment. Because Garcia was sentenced to less

than one year for his burglary conviction, that offense could not have qualified as an

aggravated felony conviction justifying the 16-level increase.

      At the time of Garcia’s plea and sentencing, our holding in Camacho-Marroquin

v. Immigration and Naturalization Service4 established that a Texas felony DWI offense

was a crime of violence for purposes of 18 U.S.C. § 16(b).5 Camacho-Marroquin was

subsequently withdrawn, but not until after Garcia’s sentencing. While Garcia’s appeal

was pending, we held in United States v. Chapa-Garza,6 that a felony DWI conviction

is not a crime of violence for purposes of 18 U.S.C. § 16(b).7 Changes in sentencing

law that occur between sentencing and appeal that benefit the defendant require

      3
        United States v. Landeros-Arreola, 260 F.3d 407, 410 (5th Cir. 2001) (citing
8 U.S.C. § 1101(a)(48)(B)).
      4
          188 F.3d 649 (5th Cir. 1999).
      5
          Id. at 652.
      6
          243 F.3d 921 (5th Cir. 2001).
      7
          Id. at 927.
                                          3
reversal and remand for re-sentencing.8 Accordingly, Garcia should be re-sentenced

without the 16-level increase under U.S.S.G. § 2L1.2(b)(1)(A).

      The sentence imposed by the district court is VACATED and this case is

REMANDED for re-sentencing.




      8
          United States v. Cervantes-Nava, 281 F.3d 501, 506 (5th Cir. 2002).
                                          4
