     Case: 09-40570     Document: 00511029842          Page: 1    Date Filed: 02/18/2010




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

                                                  FILED
                                                                          February 18, 2010
                                     No. 09-40570
                                   Summary Calendar                    Charles R. Fulbruge III
                                                                               Clerk

UNITED STATES OF AMERICA,

                                                   Plaintiff–Appellee,

v.

JOSE MAYA-DUARTE,

                                                   Defendant–Appellant.


                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 2:09-CR-54-1


Before GARZA, CLEMENT, and OWEN, Circuit Judges.
PER CURIAM:*
        Jose Maya-Duarte is appealing the 70-month sentence imposed following
his guilty-plea conviction for being found unlawfully in the United States
following his deportation. He argues that the district court plainly erred in
enhancing his sentence based on his prior conviction for aggravated assault of
a peace officer because the offense did not fall within the definition of a crime of
violence under U.S.S.G. § 2L1.2(b)(1)(A)(ii).



        *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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: 09-40570    Document: 00511029842 Page: 2      Date Filed: 02/18/2010
                                No. 09-40570

      After reviewing the record and the applicable law, we agree that the
district court committed plain error by using Maya-Duarte’s Texas aggravated-
assault conviction to increase his sentence. See United States v. Fierro-Reyna,
466 F.3d 324, 329-30 (5th Cir. 2006); United States v. Munoz-Ortenza, 563 F.3d
112, 116 (5th Cir. 2009). Accordingly, we vacate Maya-Duarte’s sentence and
remand for resentencing.
                               *      *       *
      SENTENCE VACATED; CASE REMANDED.




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