USA v. Gonzalez-Molina

Filing 920091130

IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED
No. 09-10097 Summary Calendar November 30, 2009 Charles R. Fulbruge III Clerk

UNITED STATES OF AMERICA, Plaintiff-Appellee v. ANTONIO GONZALEZ-MOLINA, Defendant-Appellant

Appeal from the United States District Court for the Northern District of Texas USDC No. 4:08-CR-132-1

Before BENAVIDES, PRADO, and SOUTHWICK, Circuit Judges. PER CURIAM:* Antonio Gonzalez-Molina appeals his sentence for illegal reentry after deportation 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)(1)(A)(ii). The Government concedes that neither the law nor the record establishes that

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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5 TH C IR.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

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No. 09-10097 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 resentencing. See Alfaro, 408 F.3d at 211. CONVICTION AFFIRMED; SENTENCE VACATED; CASE REMANDED

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