USA v. Jose Maya-Duarte

Filing 920100218

Case: 09-40570

Document: 00511029842

Page: 1

Date Filed: 02/18/2010

IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED
No. 09-40570 Summary Calendar February 18, 2010 Charles R. Fulbruge III Clerk

UNITED STATES OF AMERICA, Plaintiff­Appellee, v. JOSE MAYA-DUARTE, Defendant­Appellant.

Appeal from the United States District Court for the Southern District of Texas USDC No. 2:09-CR-54-1

Before GARZA, CLEMENT, and OWEN, Circuit Judges. PER CURIAM:* Jose Maya-Duarte is appealing the 70-month sentence imposed following his guilty-plea conviction for being found unlawfully in the United States following his deportation. He argues that the district court plainly erred in enhancing his sentence based on his prior conviction for aggravated assault of a peace officer because the offense did not fall within the definition of a crime of violence under U.S.S.G. § 2L1.2(b)(1)(A)(ii).

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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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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Case: 09-40570

Document: 00511029842 Page: 2 No. 09-40570

Date Filed: 02/18/2010

After reviewing the record and the applicable law, we agree that the district court committed plain error by using Maya-Duarte's Texas aggravatedassault conviction to increase his sentence. See United States v. Fierro-Reyna, 466 F.3d 324, 329-30 (5th Cir. 2006); United States v. Munoz-Ortenza, 563 F.3d 112, 116 (5th Cir. 2009). Accordingly, we vacate Maya-Duarte's sentence and remand for resentencing. * * *

SENTENCE VACATED; CASE REMANDED.

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