                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                              F I L E D
                                                                July 31, 2007
                  UNITED STATES COURT OF APPEALS
                           FIFTH CIRCUIT                   Charles R. Fulbruge III
                                                                   Clerk

                            No. 06-51283
                          Summary Calendar


                     UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee,

                               versus

                 WILFREDO ARNALDO TEJEDA-FUENTES,

                                                 Defendant-Appellant.


          Appeals from the United States District Court
                for the Western District of Texas
                        (2:06-CR-268-ALL)


Before DAVIS, BARKSDALE, and BENAVIDES, Circuit Judges.

PER CURIAM:*

     Wilfredo Arnaldo Tejeda-Fuentes raises two challenges to his

sentence for unlawful reentry, in violation of 8 U.S.C. § 1326.

Both challenges were raised in district court.     Its interpretation

and application of the Sentencing Guidelines are reviewed de novo.

United States v. Fierro-Reyna, 466 F.3d 324, 326 (5th Cir. 2006).

     First, Tejeda-Fuentes contends the district court erroneously

imposed   a    16-level   enhancement   pursuant      to    Guidelines



     *
       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this opinion should not be published and is not precedent except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.
§ 2L1.2(b)(1)(A)(ii) by mischaracterizing his prior Texas Penal

Code § 22.01(a)(1) assault conviction as a “crime of violence”. In

the light of United States v. Villegas-Hernandez, 468 F.3d 874,

880-82 (5th Cir. 2006) (holding force is not an element of a §

22.01 offense because bodily injury may be achieved without use of

force), cert. denied, 127 S. Ct. 1351 (2007), which was issued

after sentencing in this case, the enhancement was erroneous.

Because the Government has not shown the error did not affect the

district court’s sentencing, the error was not harmless.           See

United States v. Lopez-Urbina, 434 F.3d 750, 765 (5th Cir.), cert.

denied, 126 S. Ct. 672 (2005).

     Second, Tejeda-Fuentes claims § 1326(b)’s treatment of prior

felony convictions as sentencing factors is unconstitutional in the

light of Apprendi v. New Jersey, 530 U.S. 466 (2000).         Tejada-

Fuentes concedes this challenge is foreclosed by Almendarez-Torres

v. United States, 523 U.S. 224, 235 (1998), but raises it here to

preserve it for further review.

     For   the   foregoing   reasons,   we   AFFIRM   Tejada-Fuentes’

conviction; VACATE his sentence; and REMAND this matter to district

court for resentencing.

                 CONVICTION AFFIRMED; SENTENCE VACATED; REMANDED




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