United States v. Gonzalez-Molina

353 F. App'x 959

• Court: Court of Appeals for the Fifth Circuit
• Decided: November 30, 2009
• Docket: 09-10097
• Status: Unpublished

Opinion

PER CURIAM: *

Antonio Gonzalez-Molina appeals his sentence for illegal reentry after deporta 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* Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4.