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

                                                FILED
                                                                November 30, 2009
                               No. 09-10097
                             Summary Calendar               Charles R. Fulbruge III
                                                                    Clerk

UNITED STATES OF AMERICA,

                                           Plaintiff-Appellee

v.

ANTONIO GONZALEZ-MOLINA,

                                           Defendant-Appellant


                 Appeal from the United States District Court
                      for the Northern District of Texas
                           USDC No. 4:08-CR-132-1


Before BENAVIDES, PRADO, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
      Antonio Gonzalez-Molina appeals his sentence for illegal reentry after
deportation in violation of 8 U.S.C. § 1326(a). Gonzalez-Molina contends that
the district court committed plain error by applying a 16-level increase to his
offense level based on its finding that his 2000 Pennsylvania conviction for
aggravated assault was a crime of violence under U.S.S.G. § 2L1.2(b)(1)(A)(ii).
The Government concedes that neither the law nor the record establishes that



      *
      Pursuant to 5 TH C IR. 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should not be published and is not precedent except under the limited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 5 TH C IR. R. 47.5.4.
                                 No. 09-10097

Gonzalez-Molina’s prior conviction was a crime of violence for purposes of the
enhancement and that it was plain error to increase Gonzalez-Molina’s sentence
based on that conviction.
      After reviewing the record and the applicable law, we agree that the
district court committed plain error by using Gonzalez-Molina’s Pennsylvania
aggravated-assault conviction to increase his sentence. See United States v.
Fierro-Reyna, 466 F.3d 324, 327-29 (5th Cir. 2006); United States v. Alfaro, 408
F.3d 204, 211 (5th Cir. 2005).     Accordingly, we vacate Gonzalez-Molina’s
sentence and remand for resentencing. See Alfaro, 408 F.3d at 211.
      CONVICTION AFFIRMED; SENTENCE VACATED; CASE REMANDED




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