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U.S. v. Gonzalez-Molina

United States Court of Appeals, Fifth Circuit
Nov 30, 2009
353 F. App'x 959 (5th Cir. 2009)

Opinion

No. 09-10097 Summary Calendar.

November 30, 2009.

Nancy E. Larson, Assistant U.S. Attorney, U.S. Attorney's Office, Fort Worth, TX, for Plaintiff-Appellee.

Kevin Joel Page, Federal Public Defender's Office, Dallas, TX, for Defendant-Appellant.

Appeal from the United States District Court for the Northern District of Texas, USDC No. 4:08-CR-132-1.

Before BENAVIDES, PRADO, and SOUTHWICK, Circuit Judges.


Antonio Gonzalez-Molina appeals his sentence for illegal reentry after deportation in violation of 8 U.S.C. § 1326(a). Gonzalez-Molina contends that the district court committed plain error by applying a 16-level increase to his offense level based on its finding that his 2000 Pennsylvania conviction for aggravated assault was a crime of violence under U.S.S.G. § 2L1.2(b)(1)(A)(ii). The Government concedes that neither the law nor the record establishes that Gonzalez-Molina's prior conviction was a crime of violence for purposes of the enhancement and that it was plain error to increase Gonzalez-Molina's sentence based on that conviction.

After reviewing the record and the applicable law, we agree that the district court committed plain error by using Gonzalez-Molina's Pennsylvania aggravated-assault conviction to increase his sentence. See United States v. Fierro-Reyna, 466 F.3d 324, 327-29 (5th Cir. 2006); United States v. Alfaro, 408 F.3d 204, 211 (5th Cir. 2005). Accordingly, we vacate Gonzalez-Molina's sentence and remand for re-sentencing. See Alfaro, 408 F.3d at 211.

CONVICTION AFFIRMED; SENTENCE VACATED; CASE REMANDED.


Summaries of

U.S. v. Gonzalez-Molina

United States Court of Appeals, Fifth Circuit
Nov 30, 2009
353 F. App'x 959 (5th Cir. 2009)
Case details for

U.S. v. Gonzalez-Molina

Case Details

Full title:UNITED STATES of America, Plaintiff-Appellee v. Antonio GONZALEZ-MOLINA…

Court:United States Court of Appeals, Fifth Circuit

Date published: Nov 30, 2009

Citations

353 F. App'x 959 (5th Cir. 2009)

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