Opinion
No. 09-40841 Summary Calendar.
June 8, 2010.
James Lee Turner, Assistant U.S. Attorney, U.S. Attorney's Office, Houston, TX, for Plaintiff-Appellee.
Marjorie A. Meyers, Federal Public Defender, Timothy William Crooks, Philip G. Gallagher, Laura Fletcher Leavitt, Assistant Federal Public Defenders, 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-318-1.
Before BENAVIDES, PRADO, and SOUTHWICK, Circuit Judges.
German Sanchez-Valle pleaded guilty to illegal reentry following deportation, in violation of 18 U.S.C. § 1326(a) and (b), and he was sentenced to 33 months in prison. He challenges the district court's increase in his term of imprisonment based on its determination that his Texas conviction for possession of cocaine constituted an aggravated felony for purposes of U.S.S.G. § 2L1.2(b)(1)(C).
Under Lopez v. Gonzales, 549 U.S. 47, 54-60, 127 S.Ct. 625, 166 L.Ed.2d 462 (2006), the district court committed plain error. See United States v. John, 597 F.3d 263, 284-85 (5th Cir. 2010). The Government concedes as much. Because Sanchez-Valle has shown that there is a reasonable probability that he would have received a lesser sentence if not for misapplication of the guidelines, the plain error affected his substantial rights and seriously affected the fairness of the proceeding. See United States v. Garcia-Quintanilla, 574 F.3d 295, 303-04 (5th Cir. 2009); United States v. Villegas, 404 F.3d 355, 364 (5th Cir. 2005). Accordingly, we vacate the sentence and remand for resentencing. We express no opinion on what sentence the district court should impose on remand.
SENTENCE VACATED; CASE REMANDED.