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

                                                 FILED
                                                                             May 8, 2009

                                       No. 08-40250                    Charles R. Fulbruge III
                                                                               Clerk

UNITED STATES OF AMERICA

                                                   Plaintiff - Appellee
v.

JESUS DAMIAN GUERRERO-PARRA

                                                   Defendant - Appellant




                   Appeal from the United States District Court
                        for the Southern District of Texas
                                No. 7:07-CR-1286-1


Before KING, GARWOOD, and DAVIS, Circuit Judges.
PER CURIAM:*
       Defendant-Appellant Jesus Damian Guerrero-Parra pleaded guilty to
conspiracy to transport undocumented aliens in violation of 8 U.S.C.
§ 1324(a)(1)(A)(v)(I), (A)(ii), and (B)(i), and was sentenced to twenty-four months’
im prisonment.          Guerrero-Parra         now     m oves— without         governm ent
opposition—that this court vacate his sentence, remand for resentencing, and
issue the mandate immediately. For the following reasons, we grant Guerrero-
Parra’s motion.

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
           I. FACTUAL AND PROCEDURAL BACKGROUND
      In December 2007, Jesus Damian Guerrero-Parra was charged, inter alia,
with one count of conspiracy to transport three undocumented aliens in violation
of 8 U.S.C. § 1324(a)(1)(A)(v)(I), (A)(ii), and (B)(i). Guerrero-Parra pleaded
guilty, and the presentence report (“PSR”) assigned a total offense level of
thirteen with a criminal history category of IV. During sentencing, the district
court assessed, inter alia, one criminal history point for a misdemeanor assault
under Texas law described in paragraph 31 of the PSR and another criminal
history point for a misdemeanor assault under Texas law described in paragraph
32 of the PSR. The district court ultimately sentenced Guerrero-Parra to twenty-
four months’ imprisonment, at the lower end of the applicable range in the
United States Sentencing Guidelines (the “Guidelines”).
      Guerrero-Parra timely appealed. In lieu of a reply brief, Guerrero-Parra
filed an Unopposed Motion to Vacate the Sentence Below, to Remand for
Resentencing, and to Issue the Mandate Immediately.
                        II. STANDARD OF REVIEW
      This court’s review of a sentence begins with whether the district court
committed any “significant procedural error, such as failing to calculate (or
improperly calculating) the Guidelines range, treating the Guidelines as
mandatory, failing to consider the 18 U.S.C. § 3553(a) factors, selecting a
sentence based on clearly erroneous facts, or failing to adequately explain the
chosen sentence.” Gall v. United States, 128 S.Ct. 586, 597 (2007). Under this
procedural prong, “[f]indings of fact used in calculating the Guidelines range are
reviewed for clear error, while interpretation of the Guidelines themselves is
reviewed de novo.” United States v. Fernandez, 559 F.3d 303, 319 (5th Cir.
2009). If the sentencing decision is procedurally sound, we then consider “the
substantive reasonableness of the sentence imposed under an abuse-of-discretion



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standard.” United States v. Cisneros-Gutierrez, 517 F.3d 751, 764 (5th Cir. 2008)
(internal citations omitted).
                                III. DISCUSSION
      In his motion, Guerrero-Parra first argues that the district court
misapplied § 4A1.2(a)(2) of the Guidelines when it assessed an additional
criminal history point based on paragraph 32 of the PSR. In relevant part, this
provision states:
      If the defendant has multiple prior sentences, determine whether
      those sentences are counted separately or as a single sentence.
      Prior sentences always are counted separately if the sentences were
      imposed for offenses that were separated by an intervening arrest
      (i.e., the defendant is arrested for the first offense prior to
      committing the second offense). If there is no intervening arrest,
      prior sentences are counted separately unless (A) the sentences
      resulted from offenses contained in the same charging instrument;
      or (B) the sentences were imposed on the same day.
U.S.S.G. § 4A1.2(a)(2). In the present case, the record is undisputed that there
was no intervening arrest between Guerrero-Parra’s two misdemeanor offenses
as described in paragraphs 31 and 32 of the PSR. The sentences for these two
misdemeanor offenses were also imposed on the same day. The district court
thus contravened the plain language of § 4A1.2(a)(2) of the Guidelines when it
assessed an additional criminal history point based on the latter misdemeanor
offense.
      Second, Guerrero-Parra contends that the misdemeanor assault from
paragraph 32 is not a “crime of violence” countable under § 4A1.1(f) of the
Guidelines. In relevant part, the Guidelines state that a district court should
“[a]dd 1 point for each prior sentence resulting from a conviction of a crime of
violence that did not receive any points” under previous Guidelines provisions.
See U.S.S.G. § 4A1.1(f) (emphasis added). A “crime of violence” is defined as
“any offense under federal or state law, punishable by imprisonment for a term



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exceeding one year, that . . . has as an element the use, attempted use, or
threatened use of physical force against the person of another.”          U.S.S.G.
§ 4B1.2(a). Texas law is clear that Guerrero-Parra’s offenses do not fall into this
category. See T EX. P ENAL C ODE § 12.21(2) (“An individual adjudged guilty of a
Class A misdemeanor shall be punished by . . . confinement in jail for a term not
to exceed one year . . . .”); § 22.01(a)(1) (defining as a Class A misdemeanor an
offense where a person “intentionally, knowingly, or recklessly causes bodily
injury to another”); United States v. Villegas-Hernandez, 468 F.3d 874, 884 (5th
Cir. 2006) (“Texas law specifically categorizes an assault under § 22.01(a)(1) as
a Class A misdemeanor, which may be punished by imprisonment for not more
than one year”).
      The district court thus erred because it could not count the additional
criminal history point under either § 4A1.2(a)(2) or § 4A1.1(f) of the Guidelines.
This error is not harmless because, but for this misapplication of the Guidelines,
Guerrero-Parra’s    criminal   history   category   would   have   been   III   (an
imprisonment range of 18–24 months) instead of IV (an imprisonment range of
24–30 months).
      Finally, Guerrero-Parra argues that the mandate must be issued
immediately. We agree. Guerrero-Parra has been in federal custody since
November 15, 2007, and likely would have been released by now were it not for
the error in his sentence. He is currently scheduled to be released on August 12,
2009. Thus, further delay means that Guerrero-Parra will not receive any
benefit from a remand for a new sentence; he requires an immediate issuing of
the mandate.
                               IV. CONCLUSION
      For the foregoing reasons, Guerrero-Parra’s sentence is VACATED and the
case is REMANDED to the district court for resentencing. The mandate shall
issue forthwith.

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      MOTION GRANTED. Sentence VACATED. Case REMANDED to the
district court for resentencing. Mandate shall issue forthwith.




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