USA v. Jose Gonzalez

Filing

UNPUBLISHED OPINION FILED. [10-20051 Vacated and Remanded ] Judge: EGJ , Judge: EMG , Judge: CES Mandate pull date is 11/17/2010 for Appellant Jose Dolores Osorto Gonzalez; granting motion to remand case filed by Appellant Mr. Jose Dolores Osorto Gonzalez [6599933-3]; granting motion to vacate the judgment of the district court filed by Appellant Mr. Jose Dolores Osorto Gonzalez [6599933-2] [10-20051]

USA v. Jose Gonzalezase: 10-20051 C

Document: 00511276222 Page: 1 Date Filed: 10/27/2010

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IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED
N o . 10-20051 S u m m a r y Calendar October 27, 2010 Lyle W. Cayce Clerk

U N IT E D STATES OF AMERICA, P la in t if f -A p p e lle e v. J O S E DOLORES OSORTO GONZALEZ, also known as Jose D. Osorto, also known as Jose Delores Osorto, also known as Jose Dolores Osorto-Gonzalez, D e fe n d a n t -A p p e lla n t

A p p e a l from the United States District Court fo r the Southern District of Texas U S D C No. 4:09-CR-438-1

B e fo r e JOLLY, GARZA, and STEWART, Circuit Judges. P E R CURIAM:* J o s e Dolores Osorto Gonzalez appeals the sentence imposed following his c o n v ic t io n of being found unlawfully present in the United States. He contends t h a t the district court erred in assessing a 16-level enhancement, pursuant to U .S .S . G . § 2L1.2(b)(1)(A)(i), based on his Texas drug conviction, for which he in it ia lly received a term of probation but, after his subsequent deportation and

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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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

*

Dockets.Justia.com

Case: 10-20051 Document: 00511276222 Page: 2 Date Filed: 10/27/2010 No. 10-20051 ille g a l reentry, he was sentenced to five years of imprisonment. Gonzalez

r e n e w s his argument that, because he did not receive the qualifying prison term u n t il after his deportation, the temporal requirement of § 2L1.2(b)(1)(A) was not s a t is fie d , and the enhancement did not apply. He alternatively urges that the r u le of lenity requires any ambiguity to be resolved in his favor. The

G o v e r n m e n t countered that the enhancement was proper, urging that, so long a s the drug-trafficking conviction preceded the defendant's prior deportation, r e g a r d le s s whether the qualifying prison term was imposed following the in terv en in g deportation, the sentence related back to the original conviction, and t h e enhancement applied. A fte r briefing was completed in the instant case, this court held that the 1 6 -le v e l enhancement was erroneously assessed on indistinguishable facts. United States v. Bustillos-Pena, 612 F3d. 863, 867-69 (5th Cir. 2010) (concluding t h a t it was error to assess the 16-level enhancement where the defendant was d e p o r t e d before being sentenced to more than 13 months of imprisonment on a c o n v ic t io n that predated his deportation and where the defendant was convicted o f illegal reentry while incarcerated). Gonzalez now moves, without opposition, t o vacate the district court's judgment and to remand for resentencing in light o f Bustillos-Pena. Accordingly, IT IS ORDERED that, in light of Bustillos-Pena, G o n z a le z 's motion to vacate his sentence and to remand his case to the district c o u r t for resentencing is GRANTED.

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