United States v. Hernandez-Rodriguez

135 F. App'x 661

• Court: Court of Appeals for the Fifth Circuit
• Decided: June 13, 2005
• Docket: 03-41524
• Status: Unpublished

Opinion

PER CURIAM: *

Jose Genaro Hernandez-Rodriguez (Hernandez) appeals Ms sentence imposed on a guilty-plea conviction for illegal reentry into the UMted States following deportation. 8 U.S.C. § 1326(a) & (b). Hernandez argues that the district court misapplied the sentencing guidehnes by assigning a 16-level enhancement by determimng that his prior state-court conviction of unlawful restraint constituted a crime of violence under U.S.S.G. § 2L1.2(b)(l)(A)(ii)(Nov.2002). In reviewing a sentence under the Sentencmg Gmdelmes, this court reviews the district court’s interpretation of the gMdelines de novo. See United States v. Villegas, 404 F.3d 355, 359 (5th Cir.2005).

Hernandez argues that his unlawful restramt offense did not necessarily require proof of an element involving the mtentional use or threatened use of physical force against a person and, thus, it is not a crime of violence withm the meaMng of U.S.S.G. § 2L1.2(b)(l)(A). The 16-level enhancement is to be made only if the prior offense is a violation of a statute that has as an element “the use, attempted use, or threatened use of physical force against the person of another.” United States v. Calderon-Pena, 383 F.3d 254, 255 (5th Cir.2004) (en banc) (internal quotation marks and citation omitted), cert denied, - U.S. -, 125 S.Ct. 932, 160 L.Ed.2d 817 (2005). The Texas unlawful restraint statute provides for the commission of the offense in a number of different ways, some of which do not require the use, attempted use, or threatened use of physical force against a person. See Tex. Penal Code Ann. §§ 20.01 & 20.02 (Vernon 1999). Because the Texas statute — even after any attempt to “pare” it down based on the mdietment — does not require that such use of force be proved as an element of the offense, the district court erred in assigmng the 16-level enhancement. See Calderon-Pena, 383 F.3d at 259-61. Accordmgly, the sentence imposed is VACATED, and the case is REMANDED for resentencing m accord with this opiMon.

* Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4.