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United States Court of Appeals, Fifth Circuit.

UNITED STATES of America, Plaintiff-Appellee v. Ruben GARCIA-TURRUBIATE, Defendant-Appellant

No. 16-41611

Decided: April 22, 2019

Before STEWART, Chief Judge, and GRAVES and DUNCAN, Circuit Judges. John A. Reed, Assistant U.S. Attorney, Carmen Castillo Mitchell, Assistant U.S. Attorney, U.S. Attorney's Office, Southern District of Texas, Houston, TX, for Plaintiff-Appellee Marjorie A. Meyers, Federal Public Defender, Michael Lance Herman, Assistant Federal Public Defender, Federal Public Defender's Office, Southern District of Texas, Houston, TX, for Defendant-Appellant

Ruben Garcia-Turrubiate appeals the district court’s application of a 16-level crime of violence enhancement under U.S.S.G. § 2L1.2 in determining his sentence for unlawful presence in the United States. This court reviews the district court’s interpretation and application of the Guidelines de novo. United States v. Godoy, 890 F.3d 531, 535-36 (5th Cir. 2018).

We agree with the parties that the crime of violence enhancement for Garcia-Turrubiate’s prior conviction under Texas Penal Code § 30.02(a) was erroneous in light of United States v. Herrold, 883 F.3d 517, 541 (5th Cir. 2018) (en banc), petitions for cert. filed (Apr. 18, 2018) (No. 17-1445) and (May 21, 2018) (No. 17-9127), which was issued after Garcia-Turrubiate was sentenced but while this appeal was pending. See Godoy, 890 F.3d at 536 & n.16 (applying Herrold in a § 2L1.2 case). Accordingly, we VACATE the sentence and REMAND for resentencing.



PER CURIAM: * FN* Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4.

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