U.S. v. Carales-Villalta

Full title: UNITED STATES of America, Plaintiff-Appellee, v. Nelson Arceny…

Court: United States Court of Appeals, Fifth Circuit

Date published: Feb 20, 2009

311 F. App'x 727 (5th Cir. 2009)

Opinion

No. 08-40349 Summary Calendar.

February 20, 2009.

James Lee Turner, Assistant U.S. Attorney, U.S. Attorney's Office, Southern District of Texas, Houston, TX, for Plaintiff-Appellee.

Marjorie A. Meyers, Federal Public Defender, David Lopez, Federal Public Defender's Office, Southern District of Texas, Houston, TX, for Defendant-Appellant.

Appeal from the United States District Court for the Southern District of Texas, No. 5:07-CR-764-ALL.

Before SMITH, STEWART, and SOUTHWICK, Circuit Judges.

PER CURIAM:[fn*] [fn*] 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.

Nelson Carales-Villalta pleaded guilty of illegal reentry following removal. He argues that the district court erred in enhancing his sentence under U.S.S.G. § 2L1.2(b)(1)(C) based on the determination that a prior Texas conviction for delivery of a controlled substance is an aggravated felony. The government concedes that the sentence enhancement is erroneous and that the error is not harmless. We agree. See United States v. Morales-Martinez, 496 F.3d 356, 360-61 (5th Cir.), cert. denied, ___ U.S. ___, 128 S.Ct. 410, 169 L.Ed.2d 287 (2007); United States v. Fuentes, 245 Fed.Appx. 358 (5th Cir.) (per curiam), cert. denied, ___ U.S. ___, 128 S.Ct. 410, 169 L.Ed.2d 287 (2007). We find no error in the district court's use of the term "Reentry of a Deported Alien" in the written judgment of conviction. See United States v. Buendia-Rangel, 553 F.3d 378, 380 (5th Cir. 2008) (per curiam) (unpublished).

CONVICTION AFFIRMED; SENTENCE VACATED; CASE REMANDED FOR RESENTENCING.