                                                                                        United States Court of Appeals
                                                                                                 Fifth Circuit
                                                                                               F I L E D
                      IN THE UNITED STATES COURT OF APPEALS
                                                                                              October 13, 2005
                                   FOR THE FIFTH CIRCUIT
                                                                                           Charles R. Fulbruge III
                                                                                                   Clerk


                                            No. 04-41656
                                          Summary Calendar



UNITED STATES OF AMERICA,

                                                                                          Plaintiff-
                                                           Appellee,
                                                  versus

SALVADOR MATA-HERNANDEZ,

                                                                                        Defendant-
                                                           Appellant.

                        -------------------------------------------------------------
                            Appeal from the United States District Court
                                   for the Southern District of Texas
                                     USDC No. 7:04-CR-701-ALL
                       --------------------------------------------------------------

Before BARKSDALE, STEWART and CLEMENT, Circuit Judges.

PER CURIAM:*

       Salvador Mata-Hernandez appeals his sentence imposed following his guilty plea conviction

for illegal reentry into the United States following deportation. Mata-Hernandez was sentenced to

a term of imprisonment of 41 months to be followed by a two-year term of supervised release.




       *

  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 R. 47.5, the court has determined that this opinion should not be published and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.
        Mata-Hernandez contends that his Iowa incest conviction is not a “crime of violence” as

defined by U.S.S.G. § 2L1.2(b)(1)(A)(ii) and this court’s jurisprudence because it does not have as

an element the use or attempted use of force. The Government concedes error.

        Section § 2L1.2 of the United States Sentencing Guidelines provides that the offense level for

unlawfully entering or remaining in the United States shall be increased by 16 levels if the defendant

has a prior conviction for a “crime of violence.” U.S.S.G. § 2L1.2(b)(1)(A)(ii). The commentary

to U.S.S.G. § 2L1.2 defines “crime of violence” as any of certain listed offenses or “any offense under

federal, state, or local law that has as an element the use, attempted use, or threatened use of physical

force against the person of another.” U.S.S.G. § 2L1.2, comment. (n.1(B)(iii)). Because incest is

not a listed offense, the offense must involve the use or threatened use of force to be a “crime of

violence” in this context.

        Iowa Code § 726.2 provides that a

        person, except a child as defined in section 702.5, who performs a sex act with
        another whom the person knows to be related to the person, either legitimately or
        illegitimately, as an ancestor, descendant, brother or sister of the whole or half blood,
        aunt, uncle, niece, or nephew, commits incest.

        The commission of the offense does not require the use of physical force against a person.

See United States v. Vargas-Duran, 356 F.3d 598, 600 (5th Cir.), cert. denied, 541 U.S. 965 (2004).

Thus, it was not a crime of violence warranting a 16-level enhancement pursuant to U.S.S.G. §

2L1.2(b)(1)(A)(ii).

The sentence is vacated and the case is remanded to the district court for resentencing.

        Mata-Hernandez also argues that he should be resentenced because the district court erred

in sentencing him under a mandatory guidelines scheme invalidated by United States v. Booker, 125



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S. Ct. 738 (2005). Given that Mata-Hernandez’s sentence has been vacated, it is not necessary to

address the Booker issue. See United States v. Southerland, 405 F.3d 263, 270 (5th Cir. 2005).

       Mata-Hernandez’s argument that the treatment of prior convictions as sentencing factors

rather than offense elements under 18 U.S.C. § 1326(b)(1), (b)(2) is unconstitutional is foreclosed

by Almendarez-Torres v. United States, 523 U.S. 224 (1998).

       SENTENCE VACATED; CASE REMANDED TO THE DISTRICT COURT FOR

RESENTENCING.




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