     Case: 09-40841     Document: 00511134756          Page: 1    Date Filed: 06/08/2010




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

                                                  FILED
                                                                            June 8, 2010
                                     No. 09-40841
                                   Summary Calendar                         Lyle W. Cayce
                                                                                 Clerk

UNITED STATES OF AMERICA,

                                                   Plaintiff-Appellee

v.

GERMAN SANCHEZ-VALLE,

                                                   Defendant-Appellant


                    Appeal from the United States District Court
                         for the Southern District of Texas
                              USDC No. 2:09-CR-318-1


Before BENAVIDES, PRADO, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
        German Sanchez-Valle pleaded guilty to illegal reentry following
deportation, in violation of 18 U.S.C. § 1326(a) and (b), and he was sentenced to
33 months in prison. He challenges the district court’s increase in his term of
imprisonment based on its determination that his Texas conviction for
possession of cocaine constituted an aggravated felony for purposes of U.S.S.G.
§ 2L1.2(b)(1)(C).



        *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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: 09-40841   Document: 00511134756 Page: 2        Date Filed: 06/08/2010
                                No. 09-40841

      Under Lopez v. Gonzales, 549 U.S. 47, 54-60 (2006), the district court
committed plain error. SeeUnited States v. John, 597 F.3d 263, 284-85 (5th Cir.
2010). The Government concedes as much. Because Sanchez-Valle has shown
that there is a reasonable probability that he would have received a lesser
sentence if not for misapplication of the guidelines, the plain error affected his
substantial rights and seriously affected the fairness of the proceeding. See
United States v. Garcia-Quintanilla, 574 F.3d 295, 303-04; United States v.
Villegas, 404 F.3d 355, 364 (5th Cir. 2005). Accordingly, we vacate the sentence
and remand for resentencing. We express no opinion on what sentence the
district court should impose on remand.
      SENTENCE VACATED; CASE REMANDED.




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