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

                                                                            FILED
                                                                         January 16, 2009
                                     No. 07-30635
                                   Summary Calendar                   Charles R. Fulbruge III
                                                                              Clerk

UNITED STATES OF AMERICA

                                                  Plaintiff-Appellee

v.

ABEL DIAZ-SANCHEZ

                                                  Defendant-Appellant


                   Appeal from the United States District Court
                      for the Western District of Louisiana
                           USDC No. 6:06-CR-60076-1


Before JONES, Chief Judge, and STEWART and OWEN, Circuit Judges.
PER CURIAM:*
       Abel Diaz-Sanchez appeals from his guilty-plea conviction and sentence
for illegal reentry after deportation from the United States. Diaz-Sanchez
asserts that the Government failed to show that his prior convictions were
“crimes of violence” for enhancement purposes. He specifically contends that the
district court erred by relying exclusively on the presentence report’s
characterization of his prior convictions to conclude that a 16-level enhancement
was warranted pursuant to U.S.S.G. § 2L1.2(b)(1)(A)(ii).                 The government


       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 07-30635

concedes error and agrees that the correct disposition is to vacate and remand
for resentencing.
      Diaz-Sanchez did not object to the district court’s characterization of his
convictions as a “crime of violence.” Accordingly, we apply the plain error
standard of review, which requires (1) an error, (2) that is clear or obvious, and
(3) that affected Diaz-Sanchez’s substantial rights.       See United States v.
Garza-Lopez, 410 F.3d 268, 272 (5th Cir. 2005). If those conditions are met, this
court will reverse only if the error seriously affects the fairness, integrity, or
public reputation of judicial proceedings. Id.
      The district court adopted the presentence report (PSR) and found that
Diaz-Sanchez’s prior convictions for aggravated battery and false imprisonment
constituted “crimes of violence” warranting a 16-level enhancement under
§ 2L1.2(b)(1)(A)(ii). However, the record does not contain a citation to the
specific Florida statutes under which Diaz-Sanchez was convicted, nor does it
include any documentary evidence related to his convictions.            The only
information in the record concerning Diaz-Sanchez’s prior convictions is the
PSR’s characterization of the offenses.
      Although the PSR is presumed to be sufficiently reliable such that a
district court may properly rely on it during sentencing,” see United States v.
Caldwell, 448 F.3d 287, 291 n.1 (5th Cir. 2006), a district court may not rely on
“a PSR’s characterization of a defendant’s prior offense for enhancement
purposes.” United States v. Garza-Lopez, 410 F.3d 268, 273-74 (5th Cir. 2005).
In the instant case, the district court did not disclose the basis for its finding
that Diaz-Sanchez’s prior offenses constituted “crimes of violence,” and nothing
in the record indicates that the court relied on something other than the PSR in
reaching its conclusion.    As the PSR’s unsupported conclusion that Diaz-
Sanchez’s prior offenses were “crimes of violence” was the exclusive basis for the
district court’s ruling, the district court committed plain error in applying an
enhancement under § 2L1.2(b)(1)(A)(ii). See United States v. Gonzalez-Terrazas,

                                          2
                                  No. 07-30635

529 F.3d 293, 296-99 (5th Cir. 2008). Moreover, because this error likely
increased Diaz-Sanchez’s sentence, as the government concedes, the error
affected his substantial rights and the fairness of the proceedings. See Gonzalez-
Terrazas, 529 F.3d at 299.
      In light of the foregoing, we vacate and remand for resentencing. On
remand, the district court should permit the government to supplement the
record with appropriate documents that may establish the applicable elements
of Diaz-Sanchez’s prior offenses. United States v. Bonilla-Mungia, 422 F.3d 316,
321 (5th Cir. 2005).
      VACATE AND REMAND




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