The district court found Roberto Cervantes-Nava guilty of illegally re-entering the United States in violation of 8 U.S.C. § 1326 and imposed an increase of sixteen in his base offense level for a driving while intoxicated (“DWI”) conviction. Because, in this criminal case, the federal courts cannot alter the derivative citizenship requirements of the Immigration and Nationality Act (“INA”) to grant Cervantes-Nava citizenship, we affirm the conviction despite his equal protection challenge. Because this court recently has concluded that Texas DWI is not an aggravated felony, we vacate the sentence and remand for resentencing.
I.
Maria de Cervantes (“Maria”) was born in the United States in 1923 and lived there until moving to Mexico at age eleven. She married Pedro Cervantes Juarez, a citizen of Mexico. In August 1952, Maria began working as a live-in housekeeper in the United States, residing in the United States during the week and returning on the weekends to Mexico, where her husband and sons lived.
In 1957, Maria gave birth to Cervantes-Nava in Mexico; he was the legitimate child of Pedro Cervantes Juarez. Maria had been physically present in the United States for eleven years but not for a period of five years after reaching the age of fourteen. The parties agree that her presence in the United States was short of the five years necessary for Cervantes-Nava to obtain derivative citizenship under the INA.
In 1965, Maria filed with the Immigration and Naturalization Service (“INS”) an application for Cervantes-Nava’s certification of citizenship. The INS denied the application because Maria had not satisfied the residency requirements necessary to *503confer citizenship on Cervantes-Nava. If Cervantes-Nava had been an illegitimate child, he would have satisfied the requirements for derivative citizenship.
In 1972, Cervantes-Nava became a lawful permanent resident at the age of fifteen. In 1993, an immigration judge deported him to Mexico because of convictions of two theft counts and because of the absence of family ties to the area. Despite the deportation order, Cervantes-Nava returned to the United States.
II.
Cervantes-Nava stipulated to the facts underlying the charge of illegal re-entry into the United States after deportation but disputed his status as an alien, challenging the constitutionality of the derivative citizenship laws that classified him as a non-citizen. He argued that the INA cannot constitutionally impose a five-year continuous residency requirement on mothers of legitimate children while requiring only a one-year requirement for mothers of illegitimate children. The district court rejected this argument, concluding that Cervantes-Nava was not a citizen.
The government filed a notice to enhance penalty, claiming that Cervantes-Nava’s DWI conviction in Texas state court qualified as an aggravated felony conviction and justified an enhanced sentence under 18 U.S.C. § 16(b). The court rejected Cervantes-Nava’s argument that Texas DWI is not a crime of violence and enhanced the sentence by sixteen levels. This yielded a guideline range of 46-57 months, and the court sentenced him to 46 months’ imprisonment.
III.
We begin by examining the INA’s derivative citizenship provisions.1 At the time of Cervantes’s birth,2 the parental residency requirements of the INA benefited illegitimate children to the detriment of legitimate children.
Citizen fathers and wed citizen mothers faced longer residency requirements than did unwed citizen mothers, making it easier for illegitimate children born abroad to obtain citizenship. Section 301(a)(7) of the INA governed generally the citizenship of children born outside the United States to a citizen parent and alien parent and required that the citizen parent’s cumulative residency in the United States equal at least ten years and that the parent spend five of those years in the United States after age fourteen.3 Section 309(c) gov*504erned the citizenship of illegitimate children born abroad to citizen mothers and imposed only the requirement that the citizen mother reside in the United States for a year continuously before the child’s birth.4 In sum, the statutory scheme established more lenient residency requirements for unwed citizen mothers than for married mothers, married fathers, and unwed fathers.
IV.
Cervantes-Nava argues that the government cannot carry its burden of proving his alien status by relying on the denial of citizenship under immigration statutes that he claims are unconstitutional. The premise of Cervantes-Nava’s argument is correct — alien status counts as an element of the illegal re-entry charge that the United States must prove beyond a reasonable doubt.5 As proof, the government presented copies of the 1965 denial of citizenship and the immigration judge’s 1993 order deporting Cervantes-Nava.6 Cervantes-Nava does not challenge a single fact underlying these orders and concedes that the derivative citizenship statutes at the time of his birth made him an alien rather than a citizen.
We will assume, arguendo, the unconstitutionality of the derivative citizenship statutes and will consider whether that assumed unconstitutionality would disprove the alienage element of the illegal re-entry conviction. That hypothetical inquiry leads us to conclude that if a court found the derivative citizenship statutes unconstitutional, it either would sever the more lenient residency requirement for citizen mothers of illegitimate children or would strike down the INA in its entirety. Neither remedy would result in Cervantes-Nava’s being granted citizenship. Because any judicial interpretation of the INA would classify him as an alien, the government has met its burden of proving *505his alien status even if the derivative citizenship statutes are unconstitutional.7
A court reviewing the 1965 denial of citizenship or 1993 deportation order and finding the statute unconstitutional could correct the constitutional infirmity either by severing the unconstitutional provisions or by striking down the statute in its entirety.8 We examine these possibilities in turn.
A.
Theoretically, a court would have two severance options to cure the equal protection problems of which CervantesNava complains.9 A court (1) could sever the stringent, default parental residency requirement of § 301(a)(7) and expand citizenship to both legitimate and illegitimate children under § 309(c) or (2) could sever the more lenient parental residency requirement of § 309(c) and apply the more stringent, default requirement of § 301(a)(7) to both legitimate and illegitimate children.10
The first option, however, would not cure the constitutional defect, because severance of § 301(a)(7) would not suffice to eliminate the unconstitutional distinction between legitimate and illegitimate children, given that § 309(c) specifically confers benefits on children born “out of wedlock.” For these benefits to be extended to legitimate children, we not only have to sever § 301(a)(7), but also would have to rewrite § 309(c). We decline to engage in legislative draftsmanship of this sort,11
*506Thus, if a court were to use severance to cure the unconstitutionality, it would simply sever § 309(c) and leave the rest of the statute intact. Such a construction would not result in Cervantes Nava’s obtaining citizenship.
B.
The alternative to severance is to strike down the INA in its entirety. Because the Constitution does not grant Cervantes-Nava citizenship, this option still would leave him without any putative source of citizenship and would not affect his status as an alien.
Because there is no viable construction of the INA under which Cervantes-Nava would be a citizen, the district court properly found that the government had proven his alien status beyond a reasonable doubt. Thus, the conviction must stand.
V.
The district court, under 18 U.S.C. § 16(b), enhanced Cervantes-Nava’s base offense level by sixteen for a Texas state DWI conviction. We review statutory and guideline interpretations de novo. United States v. Chapa-Garza, 243 F.3d 921, 924 (5th Cir.2001).
While this case was on appeal, we held in another case that Texas DWI is not a crime of violence or an aggravated felony under § 16(b). Id. at 923-28. Changes in sentencing law between sentencing and appeal that benefit the defendant require us to reverse and remand for resentencing. United States v. Miranda, 248 F.3d 434, 445 (5th Cir.), cert. denied, — U.S. -, 122 S.Ct. 410, 151 L.Ed.2d 312 (2001). The district court should recalculate Cervantes-Nava’s sentence without the sixteen-level enhancement.
The judgment of conviction is AFFIRMED. The judgment of sentence is VACATED and REMANDED for resen-tencing.