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

                                                                            FILED
                                                                           June 23, 2008
                                     No. 07-40822
                                   Summary Calendar                   Charles R. Fulbruge III
                                                                              Clerk

UNITED STATES OF AMERICA

                                                  Plaintiff-Appellee

v.

DANIEL OVIDIO RAMIREZ-CUADRA

                                                  Defendant-Appellant


                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 5:07-CR-260-1


Before JOLLY, DAVIS, and DeMOSS, Circuit Judges.
PER CURIAM:*
       Daniel Ovidio Ramirez-Cuadra appeals his guilty plea conviction and 36-
month sentence for illegal reentry after removal. Ramirez-Cuadra admitted at
rearraignment that he was apprehended in Laredo, Texas in 2007 after having
been removed from the United States in 2002. Ramirez-Cuadra argues that the
district court committed plain error by applying the “aggravated felony”
enhancement under 8 U.S.C. § 1326(b)(2) based on the finding that Ramirez-
Cuadra had committed an aggravated felony in 2003 and had been removed in


       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
                                  No. 07-40822

2005. Ramirez-Cuadra argues that the fact of his 2005 removal was not alleged
in his indictment, proven beyond a reasonable doubt at trial, or admitted by him.
      Because Ramirez-Cuadra did not object on this ground before the district
court, plain error review applies to this issue. See United States v. Rojas-Luna,
522 F.3d 502, 504 (5th Cir. 2008). Based on our recent decision in Rojas-Luna,
we conclude that the district court plainly erred in finding that Ramirez-Cuadra
was removed in 2005 for purposes of increasing his sentence beyond the two year
statutory maximum set forth in § 1326(a). See id. at 506 (“Almendarez-Torres is
limited to prior convictions and . . . any other fact used to increase a sentence
beyond a statutory maximum must be proven to a jury.”). This error seriously
affected the fairness and integrity of the proceedings. See id. In the exercise of
our discretion, relief is warranted.    See id.   We vacate Ramirez-Cuadra’s
sentence and remand for resentencing consistent with Rojas-Luna.
      Because Ramirez-Cuadra “is not subject to the sentencing enhancement
under § 1326(b)(2), we need not address [Ramirez-Cuadra]’s argument that use
of his [2005] conviction under § 1326(b)(2) is unconstitutional, although we note
that such an argument is foreclosed under our precedent.” Rojas-Luna, 522 F.3d
at 507 n.3.
      CONVICTION AFFIRMED; SENTENCE VACATED; CASE REMANDED.




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