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

                                                                            FILED
                                                                            July 8, 2008
                                     No. 07-50426
                                   Summary Calendar                   Charles R. Fulbruge III
                                                                              Clerk




UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee,

v.

MARIO HUMBERTO ARREOLA-TRASVINA,

                                                  Defendant-Appellant.




                   Appeal from the United States District Court
                        for the Western District of Texas
                              No. 3:06-CR-2275-ALL




Before SMITH, BARKSDALE, and ELROD, Circuit Judges.
PER CURIAM:*
       Mario Humberto Arreola-Trasvina pleaded guilty, without a written plea
agreement, of unlawfully reentering the United States following deportation in
violation of 8 U.S.C. § 1326. The district court imposed a 16-level enhancement


       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 07-50426

pursuant to U.S.S.G. § 2L1.2(b)(1)(A) based on Arreola-Trasvina’s prior convic-
tion of burglary under § 459 of the California Penal Code. Arreola-Trasvina
challenges that enhancement.
      Because Arreola-Trasvina did not raise the issue in the district court, we
review for plain error, which requires (1) error (2) that is clear or obvious, and
(3) that affects substantial rights. See United States v. Garza-Lopez, 410 F.3d
268, 272 (5th Cir. 2005). If those conditions are met, we will reverse only if the
error seriously affects the fairness, integrity, or public reputation of judicial pro-
ceedings. Id.
      In light of United States v. Gonzalez-Terrazas, No. 07-50375, 2008 WL
2132833, at *2-*3 (5th Cir. May 22, 2008) (on petition for rehearing), and United
States v. Ortega-Gonzaga, 490 F.3d 393, 395-96 (5th Cir.), cert. denied, 128 S. Ct.
410 (2007), burglary under § 459 does not constitute burglary of a dwelling un-
der U.S.S.G. § 2L1.2. We reject the government’s suggestion that we employ the
modified categorical approach and look to the charging documents to character-
ize the burglary offense. See Gonzalez-Terrazas, 2008 WL 2132833, at *3; Orte-
ga-Gonzaga, 490 F.3d at 396 n.5. Pursuant to Ortega-Gonzaga and Gonzalez-
Terrazas, the enhancement is clear or obvious error, although the district court
did not have the benefit of those decisions at the time of sentencing. See United
States v. Avants, 278 F.3d 510, 521 (5th Cir. 2002).
      The error affected Arreola-Trasvina’s substantial rights, because absent
the 16-level enhancement, his sentencing range would have been substantially
lower than 70 to 87 months. See United States v. Gonzalez-Terrazas, No. 07-
50375, 2008 WL 282202, at *4 (5th Cir. Feb. 1, 2008), withdrawn on other
grounds, 2008 WL 2132833 (5th Cir. May 22, 2008). Finally, the sentencing dis-
parity warrants the exercise of our discretion to correct it. See id.
      The sentence is VACATED, and this matter is REMANDED for resentenc-
ing consistent with this opinion.


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