                                                               United States Court of Appeals
                                                                        Fifth Circuit
                                                                     F I L E D
                 IN THE UNITED STATES COURT OF APPEALS
                         FOR THE FIFTH CIRCUIT                        June 10, 2005

                                                                 Charles R. Fulbruge III
                                                                         Clerk
                               No. 03-41524
                             Summary Calendar



UNITED STATES OF AMERICA,

                                        Plaintiff-Appellee,

versus

JOSE GENARO HERNANDEZ-RODRIGUEZ,

                                        Defendant-Appellant.

                         --------------------
             Appeal from the United States District Court
                  for the Southern District of Texas
                        USDC No. 1:03-CR-574-1
                         --------------------

Before REAVLEY, JOLLY, and HIGGINBOTHAM, Circuit Judges.

PER CURIAM:*

     Jose    Genaro   Hernandez-Rodriguez        (Hernandez)    appeals      his

sentence imposed on a guilty-plea conviction for illegal reentry

into the United States following deportation.          8 U.S.C. § 1326 (a)

& (b).   Hernandez argues that the district court misapplied the

sentencing     guidelines   by   assigning   a   16-level   enhancement        by

determining that his prior state-court conviction of unlawful

restraint constituted a crime of violence under U.S.S.G.




     *
       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this opinion should not be published and is not precedent except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. 03-41524
                                   -2-

§ 2L1.2(b)(1)(A)(ii)(Nov. 2002). In reviewing a sentence under the

Sentencing Guidelines, this court reviews the district court’s

interpretation of the guidelines de novo.        See United States v.

Villegas, 404 F.3d 355, 359 (5th Cir. 2005).

     Hernandez argues that his unlawful restraint offense did not

necessarily require proof of an element involving the intentional

use or threatened use of physical force against a person and, thus,

it is not a crime of violence within the meaning of U.S.S.G. §

2L1.2(b)(1)(A). The 16-level enhancement is to be made only if the

prior offense is a violation of a statute that has as an element

“the use, attempted use, or threatened use of physical force

against the person of another.”      United States v. Calderon-Pena,

383 F.3d 254, 255 (5th Cir. 2004) (en banc) (internal quotation

marks and citation omitted), cert denied, 125 S. Ct. 932 (2005).

The Texas unlawful restraint statute provides for the commission of

the offense in a number of different ways, some of which do not

require the use, attempted use, or threatened use of physical force

against a person.     See TEX. PENAL CODE ANN. §§ 20.01 & 20.02 (Vernon

1999). Because the Texas statute--even after any attempt to “pare”

it down based on the indictment--does not require that such use of

force be proved as an element of the offense, the district court

erred in assigning the 16-level enhancement.       See Calderon-Pena,

383 F.3d at 259-61.    Accordingly, the sentence imposed is VACATED,

and the case is REMANDED for resentencing in accord with this

opinion.
