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.