United States v. Heber Garza-Arellano ( 2011 )

Case: 09-41037 Document: 00511364688 Page: 1 Date Filed: 01/28/2011
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
January 28, 2011
No. 09-41037
Summary Calendar Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
HEBER ELEAZAR GARZA-ARELLANO,
Defendant-Appellant
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 7:08-CR-1626-1
Before KING, DeMOSS, and CLEMENT, Circuit Judges.
PER CURIAM:*
Heber Eleazar Garza-Arellano appeals the sentence imposed following his
conviction for illegal reentry after deportation, in violation of 8 U.S.C. § 1326(a).
The district court imposed a sentence of 46 months of imprisonment, to be
followed by a three-year term of supervised release. Garza-Arellano contends
that the sentence is illegal because it exceeds the statutory maximum sentence
of two years of imprisonment and one year of supervised release. He notes that
he was not charged with a violation of 8 U.S.C. § 1326(b), which would have
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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: 09-41037 Document: 00511364688 Page: 2 Date Filed: 01/28/2011
No. 09-41037
increased the statutory maximum sentence to ten years or twenty years of
imprisonment and three years of supervised release. The Government concedes
error.
Garza-Arellano is correct that the district court plainly erred by imposing
an illegal sentence of 46 months of imprisonment and two years of supervised
release. See United States v. Vera, 542 F.3d 457, 459 (5th Cir. 2008). The
statute under which Garza-Arellano was convicted has a statutory maximum of
two years of imprisonment and one year of supervised release. See 8 U.S.C.
§ 1326(a); 18 U.S.C. §§ 3583(b)(3), 3559(a)(5); United States v. Velasquez-Torrez,
609 F.3d 743, 746 (5th Cir.), cert. denied, 131 S. Ct. 438 (2010).
Accordingly, Garza-Arellano’s sentence is VACATED. The case is
REMANDED. The court is INSTRUCTED to resentence Garza-Arellano within
the statutory range.
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