United States Court of Appeals
Fifth Circuit
F I L E D
UNITED STATES COURT OF APPEALS September 5, 2006
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
_______________________ Clerk
No. 05-41391
Summary Calendar
_______________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
LAURO JAVIER PORTILLO-VELA,
Defendant-Appellant.
On Appeal from the United States District Court
for the Southern District of Texas
Docket No. 7:05-CR-308-ALL
Before JONES, Chief Judge, and KING and DAVIS, Circuit Judges.
PER CURIAM:*
Lauro Javier Portillo-Vela pleaded guilty to reentering
the United States illegally after deportation in violation of
8 U.S.C. § 1326. Portillo-Vela now appeals his sentence, arguing
that the district court erred in enhancing his sentence under
U.S.S.G. § 2L1.2 because his prior sexual assault conviction under
TEX. PENAL CODE § 22.011(b)(4) did not constitute a crime of
violence. Because we agree that Portillo-Vela’s prior conviction
did not constitute a crime of violence, we VACATE and REMAND.
*
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opinion should not be published and is not precedent except under the limited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 Sentencing Guidelines provide for a sixteen-level
upward adjustment for an illegal-entry defendant with a prior
conviction for a crime of violence. U.S.S.G. § 2L1.2(b)(1)(A)(ii).
An offense qualifies as a crime of violence if it includes an
element of force or constitutes an enumerated offense. Id. cmt.
(n.1(B)(iii)).
In United States v. Luciano-Rodriguez, 442 F.3d 320 (5th
Cir. 2006), reh’g en banc denied, 2006 WL 2235104 (5th Cir. Aug. 3,
2006), we held that because TEX. PENAL CODE § 22.011(a)(1) defines
sexual assault to include those offenses, such as here, where
“assent is rendered a legal nullity by the statute,” a conviction
under § 22.011(a)(1) is not a forcible sex offense and thus not a
crime of violence. Luciano-Rodriguez, 442 F.3d at 322; see also
United States v. Sarmiento-Funes, 374 F.3d 336 (5th Cir. 2004).
Because we find no distinction between this case and Luciano-
Rodriguez, we conclude that Portillo-Vela’s prior conviction did
not constitute a crime of violence.
Therefore, we VACATE Portillo-Vela’s sentence and REMAND
to the district court for resentencing.
2