U.S. Court of Appeals for the Fifth Circuit, 2009

United States v. Gonzalez-Molina

United States v. Gonzalez-Molina
U.S. Court of Appeals for the Fifth Circuit · Decided November 30, 2009 · Benavides, Per Curiam, Prado, Southwick
353 F. App'x 959

United States v. Gonzalez-Molina

Opinion

PER CURIAM: *

Antonio Gonzalez-Molina appeals his sentence for illegal reentry after deporta *960 tion 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)(l)(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.

*

Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4.

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