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

                                                                 FILED
                                                                August 20, 2008
                               No. 05-41658
                             Summary Calendar               Charles R. Fulbruge III
                                                                    Clerk

UNITED STATES OF AMERICA

                                           Plaintiff-Appellee

v.

OSCAR URBINA-PEREZ

                                           Defendant-Appellant


                 Appeal from the United States District Court
                      for the Southern District of Texas
                        USDC No. 5:04-CR-1339-ALL


Before REAVLEY, WIENER, and PRADO, Circuit Judges.
PER CURIAM:*
      Oscar Urbina-Perez appeals the 77-month sentence imposed following his
guilty plea conviction for attempted illegal reentry of a deported alien in
violation of 8 U.S.C. § 1326. Urbina-Perez argues that the district court erred
in imposing a 16-level enhancement pursuant to U.S.S.G. § 2L1.2(b)(1)(A)(ii)
based on his prior conviction for a crime of violence, a 1995 Arizona conviction
for aggravated assault on a peace officer. He contends that the statute of
conviction, ARIZ. REV. STAT. ANN. § 13-1204(A)(5) and (C), encompasses conduct

      *
      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should not be published and is not precedent except under the limited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. 05-41658

amounting to simple assault, with the sole aggravating factor being the status
of the victim as a peace officer. He contends that the offense does not qualify as
an enumerated offense under the Guidelines because the offense falls outside of
the generic, contemporary meaning of aggravated assault.
      The Government concedes that in the light of United States v. Fierro-
Reyna, 466 F.3d 324 (5th Cir. 2006), the district court plainly erred in applying
a 16-level enhancement pursuant to § 2L1.2(b)(1)(A)(ii) based on Urbina-Perez’s
Arizona conviction for aggravated assault on a peace officer. Accordingly, we
vacate Urbina-Perez’s sentence and remand for resentencing.
      SENTENCE VACATED; CASE REMANDED FOR RESENTENCING.




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