United States v. Garcia-Vazquez , 287 F. App'x 417 ( 2008 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
July 30, 2008
No. 07-41161
Summary Calendar Charles R. Fulbruge III
Clerk
UNITED STATES OF AMERICA
Plaintiff-Appellee
v.
JORGE GARCIA-VAZQUEZ
Defendant-Appellant
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 5:07-CR-978
Before JOLLY, BENAVIDES, and HAYNES, Circuit Judges.
PER CURIAM:*
Jorge Garcia-Vazquez (Garcia) appeals his guilty plea conviction and 77-
month sentence for illegal reentry after removal. Garcia admitted at
rearraignment that he was apprehended in Laredo, Texas, in 2007 after having
been removed from the United States in 1997. Garcia argues that the district
court committed plain error by applying the “aggravated felony” enhancement
under 8 U.S.C. § 1326(b)(2) based on the finding that he had committed an
aggravated felony in 2000 and had been removed in 2001. Garcia argues that
*
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should not be published and is not precedent except under the limited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.
No. 07-41161
the fact of his 2001 removal was not alleged in his indictment, proven beyond a
reasonable doubt at trial, or admitted by him during the proceedings.
Because Garcia did not object on this ground before the district court, plain
error review applies to this issue. See United States v. Gourley, 168 F.3d 165,
171 n.10 (5th Cir. 1999). As the Government acknowledges, the district court
plainly erred in finding that Garcia was removed in 2001 for purposes of
increasing his sentence pursuant to § 1326(b)(2) beyond the two-year statutory
maximum under § 1326(a) that otherwise would have been applicable. See
United States v. Rojas-Luna, 522 F.3d 502, 504-06 (5th Cir. 2008). However,
contrary to the Government’s argument, this error did seriously affect the
fairness and integrity of the proceedings. See id. at 507. In the exercise of our
discretion, relief is warranted. See id. Accordingly, Garcia’s sentence is vacated
and the case is remanded for resentencing consistent with Rojas-Luna.
CONVICTION AFFIRMED; SENTENCE VACATED; CASE REMANDED.
2