     Case: 16-41611      Document: 00514924839         Page: 1    Date Filed: 04/22/2019




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


                                    No. 16-41611                                 FILED
                                                                             April 22, 2019
                                  Summary Calendar
                                                                            Lyle W. Cayce
                                                                                 Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

RUBEN GARCIA-TURRUBIATE,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 1:15-CR-740-1


Before STEWART, Chief Judge, and GRAVES and DUNCAN, Circuit Judges.
PER CURIAM: *
       Ruben Garcia-Turrubiate appeals the district court’s application of a 16-
level crime of violence enhancement under U.S.S.G. § 2L1.2 in determining his
sentence for unlawful presence in the United States. This court reviews the
district court’s interpretation and application of the Guidelines de novo.
United States v. Godoy, 890 F.3d 531, 535-36 (5th Cir. 2018).




       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
    Case: 16-41611    Document: 00514924839      Page: 2   Date Filed: 04/22/2019


                                 No. 16-41611

      We agree with the parties that the crime of violence enhancement for
Garcia-Turrubiate’s prior conviction under Texas Penal Code § 30.02(a) was
erroneous in light of United States v. Herrold, 883 F.3d 517, 541 (5th Cir. 2018)
(en banc), petitions for cert. filed (Apr. 18, 2018) (No. 17-1445) and (May 21,
2018) (No. 17-9127), which was issued after Garcia-Turrubiate was sentenced
but while this appeal was pending.         See Godoy, 890 F.3d at 536 & n.16
(applying Herrold in a § 2L1.2 case). Accordingly, we VACATE the sentence
and REMAND for resentencing.




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