Opinion
No. 10-20051 Summary Calendar.
October 27, 2010.
James Lee Turner, Assistant U.S. Attorney, U.S. Attorney's Office, Houston, TX, for Plaintiff-Appellee.
Marjorie A. Meyers, Federal Public Defender, Margaret Christina Ling, H. Michael Sokolow, Assistant Federal Public Defenders, Federal Public Defender's Office, Houston, TX, for Defendant-Appellant.
Appeal from the United States District Court for the Southern District of Texas, USDC No. 4:09-CR-438-1.
Before JOLLY, GARZA, and STEWART, Circuit Judges.
Jose Dolores Osorto Gonzalez appeals the sentence imposed following his conviction of being found unlawfully present in the United States. He contends that the district court erred in assessing a 16-level enhancement, pursuant to U.S.S.G. § 2L1.2(b)(1)(A)(i), based on his Texas drug conviction, for which he initially received a term of probation but, after his subsequent deportation and illegal reentry, he was sentenced to five years of imprisonment. Gonzalez renews his argument that, because he did not receive the qualifying prison term until after his deportation, the temporal requirement of § 2L 1.2(b)(1)(A) was not satisfied, and the enhancement did not apply. He alternatively urges that the rule of lenity requires any ambiguity to be resolved in his favor. The Government countered that the enhancement was proper, urging that, so long as the drug-trafficking conviction preceded the defendant's prior deportation, regardless whether the qualifying prison term was imposed following the intervening deportation, the sentence related back to the original conviction, and the enhancement applied.
After briefing was completed in the instant case, this court held that the 16-level enhancement was erroneously assessed on indistinguishable facts. United States v. Bustillos-Pena, 612 F.3d 863, 867-69 (5th Cir. 2010) (concluding that it was error to assess the 16-level enhancement where the defendant was deported before being sentenced to more than 13 months of imprisonment on a conviction that predated his deportation and where the defendant was convicted of illegal reentry while incarcerated). Gonzalez now moves, without opposition, to vacate the district court's judgment and to remand for resentencing in light of Bustillos-Pena. Accordingly, IT IS ORDERED that, in light of Bustillos-Pena, Gonzalez's motion to vacate his sentence and to remand his case to the district court for resentencing is GRANTED.