United States v. Chacon-Marquez , 306 F. App'x 79 ( 2009 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
January 6, 2009
No. 08-10415
Summary Calendar Charles R. Fulbruge III
Clerk
UNITED STATES OF AMERICA
Plaintiff-Appellee
v.
GENOVEVO CHACON-MARQUEZ
Defendant-Appellant
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 5:07-CR-75-ALL
Before JOLLY, BENAVIDES, and HAYNES, Circuit Judges.
PER CURIAM:*
Genovevo Chacon-Marquez pleaded guilty to illegal reentry after
deportation. The presentence report (PSR) recommended a base offense level of
eight pursuant to U.S.S.G. § 2L1.2(a) and an increase of eight levels pursuant
to § 2L1.2(b)(1)(C) based upon his previous Arizona conviction for Aggravated
Driving Under the Influence (DUI). Chacon-Marquez argues that the district
court erred in treating his Arizona conviction for Aggravated DUI federal drug
conviction as an “aggravated felony” under § 2L1.2.
*
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should not be published and is not precedent except under the limited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. 08-10415
Pursuant to § 2L1.2(b)(1)(C), a defendant’s base offense level for the
conviction of illegal reentry is enhanced by eight levels if the defendant has
previously been convicted for an “aggravated felony.” “For the purposes of
subsection (b)(1)(C), ‘aggravated felony’ has the meaning given that term in
section 101(a)(43) of the Immigration and Nationality Act (8 U.S.C.
§ 1101(a)(43)), without regard to the date of conviction for the aggravated
felony.” § 2L1.2, comment. (n.3(A)). Section 1101 provides, in pertinent part,
that crimes of violence as defined under 18 U.S.C. § 16 constitute aggravated
felonies. § 1101(a)(43)(F). In United States v. Chapa-Garza, 243 F.3d 921, 927
(5th Cir. 2001), this court held that a felony DUI was not a crime of violence as
defined by 18 U.S.C. § 16.
The Government has confessed error on this point and requests that the
sentence be vacated and the case remanded for resentencing. We agree. The
Government’s motion to vacate and remand is GRANTED. The Government’s
motions for dismissal or summary affirmance and extension of time are
DENIED.
Chacon-Marquez’s sentence is VACATED, and the case is REMANDED
to the district court for resentencing. As Chacon-Marquez’s sentence has been
vacated there is no need to discuss or preserve any other issues related to that
sentence.
2