USA v. Urbina-Perez, No. 05-41658 (5th Cir. 2008)

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IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT United States Court of Appeals Fifth Circuit FILED No. 05-41658 Summary Calendar August 20, 2008 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. FierroReyna, 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. 2

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