     Case: 10-41084     Document: 00511549491         Page: 1     Date Filed: 07/25/2011




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

                                                                            FILED
                                                                            July 25, 2011
                                     No. 10-41084
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee

v.

FELIX GUERRA,

                                                  Defendant-Appellant


                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 1:10-CR-657-1


Before HIGGINBOTHAM, BENAVIDES and ELROD, Circuit Judges.
PER CURIAM:*
        Felix Guerra appeals his sentence for being unlawfully present in the
United States after having been deported in violation of 8 U.S.C. § 1326. Guerra
argues that the district court committed plain error by assigning two criminal
history points to his 1996 conviction for possession of marijuana.                       The
Government concedes that the incorrect criminal history calculation resulted in
reversible plain error.



       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 10-41084    Document: 00511549491     Page: 2   Date Filed: 07/25/2011

                                 No. 10-41084

      After reviewing the record and the applicable law, we agree that the
district court committed plain error by assigning two criminal history points to
Guerra’s 1996 conviction for possession of marijuana. See United States v.
Arviso-Mata, 442 F.3d 382, 385 (5th Cir. 2006); § 4A1.2(e)(1)–(3);
§ 4A1.2(k)(2)(B). Accordingly, we vacate Guerra’s sentence and remand for
resentencing. See Arviso-Mata, 442 F.3d at 385.
      CONVICTION AFFIRMED; SENTENCE VACATED; CASE REMANDED




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