USA v. Ernesto Cavazos-Rodriguez, No. 09-41210 (5th Cir. 2010)
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Case: 09-41210 Document: 00511285739 Page: 1 Date Filed: 11/05/2010 IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED No. 09-41210 Summary Calendar November 5, 2010 Lyle W. Cayce Clerk UNITED STATES OF AMERICA, Plaintiff-Appellee v. ERNESTO RUBEN CAVAZOS-RODRIGUEZ, Defendant-Appellant Appeal from the United States District Court for the Southern District of Texas USDC No. 2:09-CR-709-1 Before KING, D EMOSS, and DENNIS, Circuit Judges. PER CURIAM:* Ernesto Ruben Cavazos-Rodriguez appeals his guilty plea conviction and 65-month sentence for illegal reentry after removal. Cavazos-Rodriguez argues that the district court committed error, plain or otherwise, by applying the aggravated felony enhancement under 8 U.S.C. § 1326(b)(2) based on the finding that he had committed an aggravated felony in 2003 and had been removed in 2004. Cavazos-Rodriguez argues that the fact of his 2004 removal * 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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: 09-41210 Document: 00511285739 Page: 2 Date Filed: 11/05/2010 No. 09-41210 was not alleged in his indictment, proven beyond a reasonable doubt at trial, or admitted by him. Because the indictment alleged only reentry after deportation without any specification of the date of deportation, much less any reference to a prior conviction, and because the Government failed to prove a deportation date at rearraignment, we conclude that the district court plainly erred in finding that Cavazos-Rodriguez was removed in 2004 for purposes of increasing his sentence beyond the two-year statutory maximum set forth in § 1326(a). See United States v. Rojas-Luna, 522 F.3d 502, 506 (5th Cir. 2008) ( Almendarez-Torres is limited to prior convictions and . . . any other fact used to increase a sentence beyond a statutory maximum must be proven to a jury. ); Almendarez-Torres v. United States, 523 U.S. 224, 235 (1998). This error seriously affected the fairness and integrity of the proceedings. Rojas-Luna, 522 F.3d at 506. In the exercise of our discretion, relief is warranted. See id. We vacate CavazosRodriguez s sentence and remand for resentencing consistent with Rojas-Luna. Because Cavazos-Rodriguez is not subject to the sentencing enhancement under § 1326(b)(2), we need not address Cavazos-Rodriguez s argument that the district court reversibly erred by treating his 2003 Texas assault conviction as an aggravated felony warranting an eight-level adjustment under U.S.S.G. § 2L1.2(b)(1)(C). Id. at 507 n.3. CONVICTION AFFIRMED; SENTENCE VACATED; CASE REMANDED. 2
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