                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                November 28, 2006

                                                         Charles R. Fulbruge III
                                                                 Clerk
                           No. 05-41198
                         Summary Calendar


                     UNITED STATES OF AMERICA,

                          Plaintiff-Appellee,

                              versus

          ENRIQUE EUGENIO-SALVADOR, also known as Jose
                       Hernandez-Ramirez,

                          Defendant-Appellant.

                       --------------------
          Appeal from the United States District Court
                for the Eastern District of Texas
                       USDC No. 4:04-CR-174
                       --------------------

Before JOLLY, DENNIS, and CLEMENT, Circuit Judges.

PER CURIAM:*

     Enrique Eugenio-Salvador (Eugenio) appeals from the sentence

imposed following his guilty plea to illegal reentry.       He argues

for the first time on appeal that his Texas conviction for unlawful

restraint did not constitute a “crime of violence” for purposes of

a U.S.S.G. § 2L1.2(b)(1)(A)(ii)(2004) enhancement.

     Our review is for plain error only.     See United States v.

Villegas, 404 F.3d 355, 358 (2005). The 16-level enhancement is to

be made only if the prior offense is a violation of a statute that


     *
       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this opinion should not be published and is not precedent except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. 05-41198
                                -2-

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).     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 1995).

Because the Texas statute does not require that such use of force

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

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

383 F.3d at 259-61; United States v. Garza-Lopez, 410 F.3d 268, 275

(5th Cir.), cert. denied, 126 S. Ct. 298 (2005).         This error

affected his substantial rights and affected the fairness and

integrity of the judicial proceedings.    See Garza-Lopez, 410 F.3d

at 275.   Accordingly, Eugenio’s sentence is VACATED, and the case

is REMANDED for resentencing.
