                               UNPUBLISHED

                      UNITED STATES COURT OF APPEALS
                          FOR THE FOURTH CIRCUIT


                               No. 07-4236



UNITED STATES OF AMERICA,

                                                  Plaintiff - Appellee,

             versus


FRANCISCO LEODAN DURAN-HERNANDEZ, a/k/a Rey
Tiburcio, a/k/a Leodan Duran-Hernandez, a/k/a
Rey Valdouinos Tiburcio, a/k/a Valdouinos
Tiburcio, a/k/a Edwin Wilfred Torres, a/k/a
Edwin Wilfredo Torres, a/k/a Rey Valdouinos,

                                                 Defendant - Appellant.


Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte. Richard L. Voorhees,
District Judge. (5:06-cr-00023)


Submitted:    October 17, 2007               Decided:   January 10, 2008


Before WILKINSON, NIEMEYER, and GREGORY, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Kimberly Y. Best, THE BEST LAW FIRM, PLLC, Charlotte, North
Carolina, for Appellant. Gretchen C. F. Shappert, United States
Attorney, Adam Morris, Assistant United States Attorney, Charlotte,
North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

               Francisco Leodan Duran-Hernandez pled guilty without a

plea agreement to unlawful reentry into the United States by a

deported alien in violation of 8 U.S.C. § 1326 (2000), and was

sentenced to seventy-one months in prison. Duran-Hernandez appeals

the district court’s judgment, arguing that the district court

erred     in     determining     that    his    prior   Virginia      involuntary

manslaughter conviction constituted a “crime of violence” under

U.S. Sentencing Guidelines Manual (“USSG”) § 2L1.2(b)(1)(A)(ii)

(2005),        thereby   warranting     application         of   a   sixteen-level

enhancement to his Guidelines range.                Although the Government

concedes that the district court erred and agrees that Duran-

Hernandez should be resentenced, we are “not at liberty to vacate

and remand for resentencing on the Government’s concession of error

alone.”        United States v. Rodriguez, 433 F.3d 411, 414 n.6 (4th

Cir. 2006) (citation omitted).           Because we find that the district

court did not err in applying the sixteen-level enhancement under

USSG § 2L1.2, we affirm.

               “In   assessing   a   challenge     to   a    sentencing    court's

application of the Guidelines, we review the [district] court's

factual findings for clear error and its legal conclusions de

novo."    United States v. Allen, 446 F.3d 522, 527 (4th Cir. 2006)

(citation omitted).        Section 2L1.2(b)(1)(A)(ii) of the Guidelines

directs a sixteen-level enhancement if the defendant was previously


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deported from the United States following “a conviction for a

felony that is . . . a crime of violence.”       Prior to November 1,

2003, a “crime of violence” was defined as:

     (I) . . . an offense under federal, state, or local law
     that has as an element the use, attempted use, or
     threatened use of physical force against the person of
     another; and

     (II)   includes  murder,   manslaughter, kidnapping,
     aggravated assault, forcible sex offenses (including
     sexual abuse of a minor), robbery, arson, extortion,
     extortionate extension of credit, and burglary of a
     dwelling.

USSG § 2L1.2 cmt. n.1(B)(ii) (2002).    This definition was amended

in 2003, however, and is now defined as:

     [M]urder, manslaughter, kidnapping, aggravated assault,
     forcible sex offenses, statutory rape, sexual abuse of a
     minor, robbery, arson, extortion, extortionate extension
     of credit, burglary of a dwelling, or any offense under
     federal, state, or local law that has as an element the
     use, attempted use, or threatened use of physical force
     against the person of another.

USSG § 2L1.2 cmt. n.1(B)(iii) (2005).

          Although   Duran-Hernandez    argues     that     involuntary

manslaughter is not a “crime of violence” because it does not have

“as an element the use . . . of physical force against the person

of another,” § 2L1.2 contains no such requirement.        As explicitly

stated by the Sentencing Commission, the definition of “crime of

violence” was amended to:

     [C]larif[y] the meaning of the term “crime of violence”
     by providing that the term “means any of the following:
     . . . .” The previous definition often led to confusion
     over whether the specified offenses listed in that
     definition, particularly sexual abuse of a minor and

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     residential burglary, also had to include as an element
     of the offense “the use, attempted use, or threatened use
     of physical force against the person of another.” The
     amended definition makes clear that the enumerated
     offenses are always classified as “crimes of violence,”
     regardless of whether the prior offense expressly has as
     an element the use, attempted use, or threatened use of
     physical force against the person of another.

USSG App. C, Vol. II, amend. 658, at 401-02 (Nov. 1, 2003).

Because all that is necessary for an enhancement under § 2L1.2 to

apply is that a prior conviction for manslaughter exist, see United

States v. Payton, 28 F.3d 17, 19 (4th Cir. 1994) (holding that the

Guidelines   commentary   “that   is   interpretative   or   explanatory

controls, so long as it is not clearly inconsistent with the

Guidelines or unconstitutional”), it is irrelevant whether the

conviction was for voluntary or involuntary manslaughter.        See id.

(finding that although the note construing “crime of violence”

under USSG § 4B1.2 does not differentiate between involuntary and

voluntary manslaughter, it includes both).

            For the foregoing reasons, we affirm the district court’s

judgment.    We dispense with oral argument because the facts and

legal contentions are adequately presented in the materials before

the court and argument would not aid the decisional process.



                                                                AFFIRMED




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