     Case: 10-20051 Document: 00511276222 Page: 1 Date Filed: 10/27/2010




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

                                                 FILED
                                                                          October 27, 2010
                                     No. 10-20051
                                   Summary Calendar                         Lyle W. Cayce
                                                                                 Clerk

UNITED STATES OF AMERICA,

                                                   Plaintiff-Appellee

v.

JOSE DOLORES OSORTO GONZALEZ, also known as
Jose D. Osorto, also known as Jose Delores Osorto,
also known as Jose Dolores Osorto-Gonzalez,

                                                   Defendant-Appellant


                    Appeal from the United States District Court
                         for the Southern District of Texas
                              USDC No. 4:09-CR-438-1


Before JOLLY, GARZA, and STEWART, Circuit Judges.
PER CURIAM:*
       Jose Dolores Osorto Gonzalez appeals the sentence imposed following his
conviction of being found unlawfully present in the United States. He contends
that the district court erred in assessing a 16-level enhancement, pursuant to
U.S.S.G. § 2L1.2(b)(1)(A)(i), based on his Texas drug conviction, for which he
initially received a term of probation but, after his subsequent deportation and



       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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: 10-20051 Document: 00511276222 Page: 2 Date Filed: 10/27/2010

                                  No. 10-20051

illegal reentry, he was sentenced to five years of imprisonment.        Gonzalez
renews his argument that, because he did not receive the qualifying prison term
until after his deportation, the temporal requirement of § 2L1.2(b)(1)(A) was not
satisfied, and the enhancement did not apply. He alternatively urges that the
rule of lenity requires any ambiguity to be resolved in his favor.            The
Government countered that the enhancement was proper, urging that, so long
as the drug-trafficking conviction preceded the defendant’s prior deportation,
regardless whether the qualifying prison term was imposed following the
intervening deportation, the sentence related back to the original conviction, and
the enhancement applied.
      After briefing was completed in the instant case, this court held that the
16-level enhancement was erroneously assessed on indistinguishable facts.
United States v. Bustillos-Pena, 612 F3d. 863, 867-69 (5th Cir. 2010) (concluding
that it was error to assess the 16-level enhancement where the defendant was
deported before being sentenced to more than 13 months of imprisonment on a
conviction that predated his deportation and where the defendant was convicted
of illegal reentry while incarcerated). Gonzalez now moves, without opposition,
to vacate the district court’s judgment and to remand for resentencing in light
of Bustillos-Pena. Accordingly, IT IS ORDERED that, in light of Bustillos-Pena,
Gonzalez’s motion to vacate his sentence and to remand his case to the district
court for resentencing is GRANTED.




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