United States v. Jose Maya-Duarte , 367 F. App'x 512 ( 2010 )

Case: 09-40570 Document: 00511029842 Page: 1 Date Filed: 02/18/2010
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
February 18, 2010
No. 09-40570
Summary Calendar Charles R. Fulbruge III
Clerk
UNITED STATES OF AMERICA,
Plaintiff–Appellee,
v.
JOSE MAYA-DUARTE,
Defendant–Appellant.
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
Case: 09-40570 Document: 00511029842 Page: 2 Date Filed: 02/18/2010
No. 09-40570
After reviewing the record and the applicable law, we agree that the
district court committed plain error by using Maya-Duarte’s Texas aggravated-
assault 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.
2