Case: 10-41084 Document: 00511549491 Page: 1 Date Filed: 07/25/2011
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
July 25, 2011
No. 10-41084
Summary Calendar Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
FELIX GUERRA,
Defendant-Appellant
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 1:10-CR-657-1
Before HIGGINBOTHAM, BENAVIDES and ELROD, Circuit Judges.
PER CURIAM:*
Felix Guerra appeals his sentence for being unlawfully present in the
United States after having been deported in violation of 8 U.S.C. § 1326. Guerra
argues that the district court committed plain error by assigning two criminal
history points to his 1996 conviction for possession of marijuana. The
Government concedes that the incorrect criminal history calculation resulted in
reversible plain error.
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 10-41084 Document: 00511549491 Page: 2 Date Filed: 07/25/2011
No. 10-41084
After reviewing the record and the applicable law, we agree that the
district court committed plain error by assigning two criminal history points to
Guerra’s 1996 conviction for possession of marijuana. See United States v.
Arviso-Mata, 442 F.3d 382, 385 (5th Cir. 2006); § 4A1.2(e)(1)–(3);
§ 4A1.2(k)(2)(B). Accordingly, we vacate Guerra’s sentence and remand for
resentencing. See Arviso-Mata, 442 F.3d at 385.
CONVICTION AFFIRMED; SENTENCE VACATED; CASE REMANDED
2