Opinion
No. 09-40570 Summary Calendar.
February 18, 2010.
James Lee Turner, Assistant U.S. Attorney, U.S. Attorney's Office, Houston, TX, for Plaintiff-Appellee.
Marjorie A. Meyers, Federal Public Defender, Molly E. Odom, Federal Public Defender's Office, Houston, TX, for Defendant-Appellant.
Appeal from the United States District Court for the Southern District of Texas, USDC No. 2:09-CR-54-1.
Before GARZA, CLEMENT, and OWEN, Circuit Judges.
Jose Maya-Duarte is appealing the 70-month sentence imposed following his guilty-plea conviction for being found unlawfully in the United States following his deportation. He argues that the district court plainly erred in enhancing his sentence based on his prior conviction for aggravated assault of a peace officer because the offense did not fall within the definition of a crime of violence under U.S.S.G. § 2L1.2(b)(1)(A)(ii).
After reviewing the record and the applicable law, we agree that the district court committed plain error by using Maya-Duarte's Texas aggravated-assault conviction to increase his sentence. See United States v. Fierro-Reyna, 466 F.3d 324, 329-30 (5th Cir. 2006); United States v. Munoz-Ortenza, 563 F.3d 112, 116 (5th Cir. 2009). Accordingly, we vacate Maya-Duarte's sentence and remand for resentencing.
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SENTENCE VACATED; CASE REMANDED.