     Case: 10-41174     Document: 00511512408          Page: 1    Date Filed: 06/17/2011




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

                                                 FILED
                                                                            June 17, 2011
                                     No. 10-41174
                                   Summary Calendar                         Lyle W. Cayce
                                                                                 Clerk

UNITED STATES OF AMERICA,

                                                   Plaintiff-Appellee

v.

EDUARDO RODRIGUEZ-SERNA,

                                                   Defendant-Appellant


                    Appeal from the United States District Court
                         for the Southern District of Texas
                              USDC No. 5:10-CR-381-1


Before KING, DeMOSS, and CLEMENT, Circuit Judges.
PER CURIAM:*
        Eduardo Rodriguez-Serna appeals his sentence following a guilty plea to
attempted illegal reentry after deportation in violation of 8 U.S.C. § 1326. At
sentencing, the district court applied a 16-level sentence enhancement based on
its finding that Rodriguez-Serna’s 2006 Texas conviction for burglary of a
habitation was a crime of violence. See U.S.S.G. § 2L1.2(b)(1)(A)(ii). The district
court determined that the advisory guidelines range was 70 to 87 months and,
after denying Rodriguez-Serna’s requests for a downward departure or a

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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: 10-41174    Document: 00511512408     Page: 2    Date Filed: 06/17/2011

                                  No. 10-41174

variance for his cultural assimilation, imposed a 70-month term                    of
imprisonment.
      As the Government concedes, the record indicates that Rodriguez-Serna’s
prior conviction was under Texas Penal Code § 30.02(a)(3), which we have held
does not meet the generic, contemporary definition of burglary. See United
States v. Constante, 544 F.3d 584, 586 (5th Cir. 2008). The Government failed
to meet its burden of proving by a preponderance of the evidence that Rodriguez-
Serna’s prior conviction qualified for the sentencing enhancement. See United
States v. Herrera-Solorzano, 114 F.3d 48, 50 (5th Cir. 1997). Accordingly, the
district court erred in applying the 16-level enhancement for a crime of violence
under § 2L1.2(b)(1)(A)(ii).
      In light of the district court’s misapplication of the Sentencing Guidelines,
this court must remand unless the Government establishes that the error is
harmless. United States v. Delgado-Martinez, 564 F.3d 750, 753 (5th Cir. 2009).
The Government also concedes that it cannot show that the error was harmless.
      Therefore, we VACATE Rodriguez-Serna’s sentence and REMAND for
resentencing consistent with this opinion.




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