                                                               United States Court of Appeals
                                                                        Fifth Circuit
                                                                     F I L E D
                      UNITED STATES COURT OF APPEALS                 September 5, 2006
                           FOR THE FIFTH CIRCUIT
                                                                 Charles R. Fulbruge III
                         _______________________                         Clerk

                               No. 05-41391
                             Summary Calendar
                         _______________________


                        UNITED STATES OF AMERICA,

                                                      Plaintiff-Appellee,

                                  versus

                       LAURO JAVIER PORTILLO-VELA,

                                                     Defendant-Appellant.


          On Appeal from the United States District Court
                 for the Southern District of Texas
                     Docket No. 7:05-CR-308-ALL


Before JONES, Chief Judge, and KING and DAVIS, Circuit Judges.

PER CURIAM:*

            Lauro Javier Portillo-Vela pleaded guilty to reentering

the United States illegally after deportation in violation of

8 U.S.C. § 1326.      Portillo-Vela now appeals his sentence, arguing

that the district court erred in enhancing his sentence under

U.S.S.G. § 2L1.2 because his prior sexual assault conviction under

TEX. PENAL CODE   §    22.011(b)(4)   did   not   constitute     a   crime     of

violence.    Because we agree that Portillo-Vela’s prior conviction

did not constitute a crime of violence, we VACATE and REMAND.


     *
            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opinion should not be published and is not precedent except under the limited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.
          The Sentencing Guidelines provide for a sixteen-level

upward adjustment for an illegal-entry defendant with a prior

conviction for a crime of violence. U.S.S.G. § 2L1.2(b)(1)(A)(ii).

An offense qualifies as a crime of violence if it includes an

element of force or constitutes an enumerated offense.    Id. cmt.

(n.1(B)(iii)).

          In United States v. Luciano-Rodriguez, 442 F.3d 320 (5th

Cir. 2006), reh’g en banc denied, 2006 WL 2235104 (5th Cir. Aug. 3,

2006), we held that because TEX. PENAL CODE § 22.011(a)(1) defines

sexual assault to include those offenses, such as here, where

“assent is rendered a legal nullity by the statute,” a conviction

under § 22.011(a)(1) is not a forcible sex offense and thus not a

crime of violence.   Luciano-Rodriguez, 442 F.3d at 322; see also

United States v. Sarmiento-Funes, 374 F.3d 336 (5th Cir. 2004).

Because we find no distinction between this case and Luciano-

Rodriguez, we conclude that Portillo-Vela’s prior conviction did

not constitute a crime of violence.

          Therefore, we VACATE Portillo-Vela’s sentence and REMAND

to the district court for resentencing.




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