           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT United States Court of Appeals
                                                   Fifth Circuit

                                                                            FILED
                                                                           July 14, 2008

                                       No. 06-51609                   Charles R. Fulbruge III
                                                                              Clerk

UNITED STATES OF AMERICA

                                                  Plaintiff-Appellee
v.

ALDEGUNDO GARCIA-HERRERA

                                                  Defendant-Appellant



                   Appeal from the United States District Court
                        for the Western District of Texas
                              USDC No. 2:06-CR-668


Before JOLLY, CLEMENT, and OWEN, Circuit Judges.
PER CURIAM:*
       Aldegundo Garcia-Herrera (Garcia) appeals the sentence he received for
violating 8 U.S.C. § 1326(a) by illegally reentering the United States after
previously being removed. Garcia argues that his term of supervised release
exceeds the maximum term authorized by the illegal reentry statute because he
is not subject to the enhanced penalty authorized by 8 U.S.C. § 1326(b)(2). We
agree and therefore VACATE Garcia’s sentence and REMAND for resentencing
not inconsistent with this opinion.


       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 06-51609

                                             I.
       In 2006 Garcia was apprehended by United States Border Patrol agents
near Uvalde, Texas. Because he had previously been removed from the United
States and had not obtained permission to reenter, Garcia was indicted for
illegally reentering the United States in violation of 8 U.S.C. § 1326(a) and
(b)(1)/(2).1 Garcia pled guilty to violation of 8 U.S.C. § 1326(a).
       The United States Probation Office prepared Garcia’s Presentence
Investigation Report (PSR). As indicated by the PSR, Garcia was assigned a
base offense level of eight for his illegal reentry, see U.S.S.G. § 2L1.2(a), received
a two-level reduction for acceptance of responsibility, see U.S.S.G. § 3E1.1(a),
and his resulting offense level was thus six. Combined with his criminal history
score, the recommended Guidelines sentencing range was two to eight months
of imprisonment.
       The probation officer who prepared the PSR, however, noted that an
upward adjustment from the recommended Guidelines sentencing range might
be warranted. The probation officer also determined that Garcia is subject to the
enhanced penalties authorized by 8 U.S.C. § 1326(b)(2). Section 1326(b)(2)
enhances the penalties authorized by § 1326(a) for aliens “whose removal was
subsequent to a conviction for commission of an aggravated felony . . . .” The
statutory maximum term of imprisonment authorized by § 1326(b)(2) is twenty
years, which renders the maximum term of supervised release not more than
three years. See 18 U.S.C. §§ 3559(a)(3) (classifying an offense punishable by a
term of imprisonment of ten or more years but less than twenty-five years as a
Class C felony), 3583(b)(2) (authorizing a term of supervised release of not more
than three years for a Class C felony).


       1
        The indictment charged Garcia with “violation of Title 8, United States Code, Section
1326(a) and (b)(1)/(2).” At sentencing, the district court indicated it was sentencing Garcia
pursuant to § 1326(a) and (b)(2).

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      Garcia objected to the probation officer’s recommendation regarding the
statutory maximum punishment for his offense. He argued that he is not subject
to the enhanced penalty authorized by § 1326(b)(2) because, while he was
removed in 2000 and 2002, he was not removed “subsequent to” his 2004 state-
law felony conviction as required by § 1326(b)(2). Garcia thus argued that he is
subject to the statutory maximum punishment provided by § 1326(a). The
statutory maximum term of imprisonment authorized by § 1326(a) is two years,
which renders the maximum term of supervised release not more than one year,
see 8 U.S.C. §§ 3559(a)(5) (classifying an offense punishable by a term of
imprisonment of more than one year but less than five years as a Class E felony),
3583(b)(3) (authorizing a term of supervised release of not more than one year
for a Class E felony).
      At sentencing, the district court overruled Garcia’s objection and adopted
the probation officer’s recommendation regarding the statutory maximum
punishment.     Specifically, the district court determined that “under [§
1326(b)(2)] as long as you have the conditions of the deportation and the re-
entry, that those are the operative—that’s the operative situation, and there has
been a conviction.       I guess I’m finding that the statute doesn’t require a
particular order of things.” The district court also determined that the advisory
Guidelines range was inadequate, upwardly departed from the advisory
Guidelines range, and sentenced Garcia to twelve months of imprisonment,
three years of supervised release, and a $100 special assessment. Garcia now
appeals.
                                        II.
      Garcia argues that his three-year term of supervised release exceeds the
maximum term authorized by the illegal reentry statute because he is not
subject to the enhanced penalty authorized by 8 U.S.C. § 1326(b)(2). As before
the district court, Garcia argues that he is not subject to the enhanced penalty


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                                 No. 06-51609
authorized by § 1326(b)(2) because he was not removed “subsequent to” his state-
law felony conviction as required by § 1326(b)(2).
       The plain language of § 1326(b)(2) references “removal . . . subsequent to
a conviction for commission of an aggravated felony.”2 (emphasis added).
Moreover, we have held, subsequent to the parties’ briefing of this case, that,
“under the plain terms of the statute,” a removal occurring prior to an
aggravated felony conviction cannot “form the basis of the enhancement in §
1326(b)(2), because it was not ‘subsequent to’ [the] conviction.” United States v.
Rojas-Luna, 522 F.3d 502, 504 (5th Cir. 2008).
       Here, Garcia was not removed subsequent to his 2004 state-law felony
conviction, and the district court thus erred by enhancing Garcia’s sentence
pursuant to 8 U.S.C. § 1326(b)(2).
                                              III.
       For the foregoing reasons, we VACATE Garcia’s sentence and REMAND
for resentencing not inconsistent with this opinion.
                                                           VACATED and REMANDED.




       2
         Whether Garcia’s prior state-law felony conviction is in fact an aggravated felony
under § 1326(b)(2) is not at issue here. Garcia asserts, without properly raising the issue for
our review, that his prior state-law felony conviction is not in fact an aggravated felony under
§ 1326(b)(2).

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