United States v. Rodriguez-Del Campo ( 2004 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT September 10, 2004
Charles R. Fulbruge III
Clerk
No. 04-40008
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JUAN RODRIGUEZ-DEL CAMPO,
Defendant-Appellant.
Appeal from the United States District Court
for the Southern District of Texas
USDC No. L-03-CR-1378-ALL
Before JONES, BARKSDALE and PRADO, Circuit Judges.
PER CURIAM:*
Juan Rodriguez-Del Campo appeals his sentence following
his guilty plea conviction for illegal reentry following
deportation in violation of 8 U.S.C. § 1326.
Rodriguez contends that the district court erred when it
increased his base offense level by 12 levels because there was no
evidence that he had previously been convicted of a felony drug
trafficking offense for which the sentence imposed was 13 months or
less as required by U.S.S.G. § 2L1.2(b)(1)(B).
*
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opinion should not be published and is not precedent except under the limited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.
The record does not support a finding that Rodriguez was
previously convicted of a felony drug trafficking offense for which
the sentence imposed was 13 months or less. Therefore, the
district court erred when it increased Rodriguez’s base offense
level by 12 levels. Accordingly, the sentence is VACATED, and this
case is REMANDED for resentencing in accordance with this opinion.
Rodriguez’s unopposed motion to vacate and remand or,
alternatively, for an extension of time to file a reply brief is
DENIED as moot.
SENTENCE VACATED AND REMANDED FOR RESENTENCING; MOTION
DENIED.
2