                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS         August 22, 2003

                                                         Charles R. Fulbruge III
                       FOR THE FIFTH CIRCUIT                     Clerk



                             No. 02-41796
                           Summary Calendar



UNITED STATES OF AMERICA,

           Plaintiff-Appellee,

                                 versus

NERLIN NOEL FLOREZ-FLOREZ,

           Defendant-Appellant.



           Appeal from the United States District Court
                for the Southern District of Texas
                      USDC No. B-02-CR-540-1


Before HIGGINBOTHAM, DAVIS, and PRADO, Circuit Judges.

PER CURIAM:*

     Nerlin Noel Florez-Florez appeals his sentence following a

guilty-plea conviction for illegal reentry into the United States

by a previously deported alien in violation of 8 U.S.C. § 1326(a)

and (b).   He argues that the district court erred in assessing two

criminal history points for a prior attempted robbery conviction

while he was a juvenile.    Based upon our review of the record, we


     *
      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this opinion should not be published and is not precedent except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.
conclude that the district court did not err in assessing these

criminal history points because Florez did not present evidence to

the district court indicating that he was released from custody for

this offense more than five years before he was arrested for the

instant offense.1    We do not consider facts that were not presented

to the district court.2

     Florez also argues that the district court erred by assessing

a criminal history point for his prior conviction for “fare-

beating,” or avoiding payment of a transportation fare.     Although

this offense is not specifically listed as an excluded offense

under Guideline § 4A1.2(c)(1), we conclude that this offense is

similar to a listed offense and that the district court erred by

not excluding it.3

     The erroneous inclusion of this single criminal history point

increased Florez’s criminal history category from III to IV, which



     1
         See U.S.S.G. § 4A1.1(b) & cmt. 2; § 4A1.2(d)(2)(A) & cmt. 7.
     2
       Theriot v. Parish of Jefferson, 185 F.3d 477, 491 n.26 (5th
Cir. 1999) (explaining that we may not consider new evidence
furnished for the first time on appeal or facts which were not
before the district court at the time of the challenged ruling);
United States v. Alford, 142 F.3d 825, 832 (5th Cir. 1998) (holding
that the district court may adopt facts contained in the PSR
without further inquiry if the facts have an adequate evidentiary
basis and the defendant does not present rebuttal evidence).
     3
       See United States v. Hardeman, 933 F.2d 278, 280-81 (5th
Cir. 1991) (describing analysis of similar offenses under §
4A1.2(c)(1)); see also United States v. Sanders, 205 F.3d 549, 553-
54 (2d Cir. 2000) (applying Hardeman factors and concluding “fare-
beating” is an excludable offense).

                                  -2-
in   turn   increased   the   applicable   range   of   imprisonment   and

therefore resulted in a sentence outside of the correct range.

Therefore, we vacate his sentence and remand this case to the

district court for resentencing consistent with this opinion.

      SENTENCE VACATED; REMANDED FOR RESENTENCING.




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