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United States v. Tijerina-Rodriguez , 250 F. App'x 656 ( 2007 )


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  •            IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
October 16, 2007
No. 06-41691
Summary Calendar                   Charles R. Fulbruge III
Clerk
UNITED STATES OF AMERICA
Plaintiff-Appellee
v.
HOMERO TIJERINA-RODRIGUEZ
Defendant-Appellant
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 5:06-CR-919-1
Before REAVLEY, SMITH, and BARKSDALE, Circuit Judges.
PER CURIAM:*
Homero Tijerina-Rodriguez appeals the sentence imposed upon his guilty-
plea conviction for illegal reentry following deportation. See 8 U.S.C. § 1326. As
the Government concedes, Tijerina’s range of imprisonment under the advisory
Guidelines was erroneously calculated because he received criminal history
points for a prior conviction too old to be included in the calculation. Because
Tijerina’s 52-month sentence is above the highest sentence under the correct
advisory guideline range of 41 to 51 months, and because the district court did
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 06-41691
not state it was imposing an upward departure or a non-guideline sentence,
Tijerina has shown the district court committed reversible plain error. See
United States v. Jones,
    489 F.3d 679
    , 681-82 (5th Cir. 2007); United States v.
Smith,
    440 F.3d 704
    , 707-08 & n.3 (5th Cir. 2006); United States v.
    Jones, 444 F.3d at 430
    , 438-41 (5th Cir.), cert. denied,
    126 S. Ct. 2958 
    (2006); United States
v. Villegas,
    404 F.3d 355
    , 364-65 (5th Cir. 2005); see also Williams v. United
States,
    503 U.S. 193
    , 200 (1992). Accordingly, Tijerina’s sentence is vacated; and
this case is remanded to the district court for resentencing.
In the light of Apprendi v. New Jersey,
    530 U.S. 466 
    (2000), Tijerina
challenges the constitutionality of § 1326(b)’s treatment of prior felony and
aggravated felony convictions as sentencing factors rather than elements of the
offense that must be found by a jury. Our court has held this issue is “fully
foreclosed from further debate”. United States v. Pineda-Arrellano,
    492 F.3d 624
    , 625 (5th Cir.), petition for cert. filed (Aug. 28, 2007) (No. 07-6202).
CONVICTION AFFIRMED; SENTENCE VACATED; REMANDED FOR
RESENTENCING.