                                                                                        United States Court of Appeals
                                                                                                 Fifth Circuit
                                                                                               F I L E D
                     IN THE UNITED STATES COURT OF APPEALS
                                                                                                March 6, 2006
                                   FOR THE FIFTH CIRCUIT
                                                                                           Charles R. Fulbruge III
                                                                                                   Clerk


                                            No. 04-41722
                                          Summary Calendar



UNITED STATES OF AMERICA,

                                                                                          Plaintiff-
                                                          Appellee,

                                                 versus

JULIO ZUNIGA-ZUNIGA,

                                                                                        Defendant-
                                                          Appellant.

                      ---------------------------------------------------------------
                           Appeal from the United States District Court
                                  for the Southern District of Texas
                                   USDC No. 1:04-CR-600-ALL
                      ---------------------------------------------------------------

Before BARKSDALE, STEWART and CLEMENT, Circuit Judges.

PER CURIAM:*

       Julio Zuniga-Zuniga appeals from his guilty-plea conviction for being an alien present in

the United States following a prior deportation for an aggravated felony. See 8 U.S.C. § 1326(a)

& (b). Zuniga’s waiver-of-appeal provision does not bar this appeal because the record reflects




       *
         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 R. 47.5, the court has determined that this opinion should not be
published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
that the magistrate judge who administered Zuniga’s plea erroneously described the waiver-of-

appeal provision. See FED. R. CRIM. P. 11(b)(1)(N).

         Zuniga argues that the district court erred in assigning a 16-level increase to his offense

level based upon a prior conviction for second degree assault that occurred in Kentucky. This

issue is reviewed de novo as Zuniga raised it in the district court. See United States v. Villegas,

404 F.3d 355, 359 (5th Cir. 2005).

         The Government concedes that the district court erred in assigning the 16-level increase

because the record does not conclusively establish that the prior conviction qualifies as a “crime of

violence” under U.S.S.G. 2L1.2(b)(1)(A)(ii)(Nov. 2004). Accordingly, Zuniga’s sentence is

vacated and remanded.

         Zuniga also argues for the first time on appeal that the district court erred in sentencing

him using and unconstitutional mandatory Sentencing Guideline regime in violation of United

States v. Booker, 125 S. Ct. 739 (2005). Zuniga’s argument will not be addressed in light of this

court’s remand for resentencing. See United States v. Southerland, 405 F.3d 263, 270 (5th Cir.

2005).

         VACATE and REMAND.
