IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 02-40173
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
GILBERTO SALDIVAR-GONZALEZ,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. B-01-CR-247-1
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January 7, 2003
Before KING, Chief Judge, and DeMOSS and BENAVIDES, Circuit
Judges.
PER CURIAM:*
Gilberto Saldivar-Gonzalez appeals his sentence following
his guilty-plea conviction for illegally reentering the United
States after having been previously deported, in violation of 8
U.S.C. §§ 1326(a) and (b). Saldivar-Gonzalez argues, and the
Government correctly concedes, that the district court erred in
assessing a 16-level increase to Saldivar-Gonzalez’ offense score
pursuant to U.S.S.G. § 2L1.2(b)(1)(A)(ii) by determining that
*
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that this opinion should not be published and is not precedent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. 02-40173
-2-
Saldivar-Gonzalez’ prior state-court conviction for retaliation
constituted a “crime of violence.” We agree that the district
court committed reversible error when it determined that the
retaliation conviction constituted a “crime of violence” for
purposes of U.S.S.G. § 2L1.2(b)(1)(A)(ii). Accordingly,
Saldivar-Gonzalez’ sentence is VACATED and his case is REMANDED
to the district court for resentencing. See United States v.
Huerta, 182 F.3d 361, 364 (5th Cir. 1999).
Saldivar-Gonzalez also argues that the voluntary disclosure
of an offense is a permissible basis for a downward departure.
See U.S.S.G. § 5K2.16, p.s. If Saldivar-Gonzalez renews his
request for a downward departure on this ground, the district
court should determine whether he is entitled to such downward
departure. See United States v. Palmer, 122 F.3d 215, 222 (5th
Cir. 1997).
SENTENCE VACATED; REMANDED FOR RESENTENCING.