Opinion
No. 07-40516 Summary Calendar.
April 25, 2008.
James Lee Turner, Assistant U.S. Attorney, U.S. Attorney's Office, Southern District of Texas, Houston, TX, for Plaintiff-Appellee.
Marjorie A. Meyers, Federal Public Defender, Federal Public Defender's Office, Southern District of Texas, Houston, TX, for Defendant-Appellant.
Appeal from the United States District Court for the Southern District of Texas, USDC No. 5:04-CR-461-1.
Before JONES, Chief Judge, and CLEMENT and SOUTHWICK, Circuit Judges.
Humberto Rodriguez-Lozano (Rodriguez) appeals his sentence for the revocation of his supervised release following his second conviction for illegal entry into the United States. For the first time on appeal, Rodriguez argues that his sentence exceeds the statutory maximum. The Government concedes that the sentence exceeds the statutory maximum.
While Rodriguez did not raise this argument below, we nevertheless review this issue de novo because Rodriguez asserts that his sentence exceeds the statutory maximum. See United States v. Del Barrio, 427 F.3d 280, 282 n. 4 (5th Cir. 2005). Rodriguez's conviction that resulted in the term of supervised release that was revoked was for a second violation of 8 U.S.C. § 1325(a)(1), which allows for a maximum sentence of two years of imprisonment and is a Class E felony. See § 1325(a); 18 U.S.C. § 3581(b)(5). Upon the revocation of supervised release that was imposed for a conviction for a Class E felony, the maximum sentence that may be imposed is one year of imprisonment. 18 U.S.C. § 3583(e)(3). Rodriguez's sentence of 18 months of imprisonment exceeds the statutory maximum. See id. Accordingly, we vacate Rodriguez's sentence and remand this case to the district court for resentencing.
VACATED AND REMANDED FOR RESENTENCING.