Summary Calendar UNITED STATES OF AMERICA v. Oscar Urbina-Perez

* 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should not be published and is not precedent except under the limited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.
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 05-41658
Summary Calendar
UNITED STATES OF AMERICA
Plaintiff-Appellee
v.
OSCAR URBINA-PEREZ
Defendant-Appellant
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 5:04-CR-1339-ALL
Before REAVLEY, WIENER, and PRADO, Circuit Judges.
PER CURIAM:*
Oscar Urbina-Perez appeals the 77-month sentence imposed following his
guilty plea conviction for attempted illegal reentry of a deported alien in
violation of 8 U.S.C. § 1326. Urbina-Perez argues that the district court erred
in imposing a 16-level enhancement pursuant to U.S.S.G. § 2L1.2(b)(1)(A)(ii)
based on his prior conviction for a crime of violence, a 1995 Arizona conviction
for aggravated assault on a peace officer. He contends that the statute of
conviction, ARIZ. REV. STAT. ANN. § 13-1204(A)(5) and (C), encompasses conduct
United States Court of Appeals
Fifth Circuit
F I L E D
August 20, 2008
Charles R. Fulbruge III
Clerk

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No. 05-41658
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amounting to simple assault, with the sole aggravating factor being the status
of the victim as a peace officer. He contends that the offense does not qualify as
an enumerated offense under the Guidelines because the offense falls outside of
the generic, contemporary meaning of aggravated assault.
The Government concedes that in the light of United States v. Fierro-
Reyna, 466 F.3d 324 (5th Cir. 2006), the district court plainly erred in applying
a 16-level enhancement pursuant to § 2L1.2(b)(1)(A)(ii) based on Urbina-Perez’s
Arizona conviction for aggravated assault on a peace officer. Accordingly, we
vacate Urbina-Perez’s sentence and remand for resentencing.
SENTENCE VACATED; CASE REMANDED FOR RESENTENCING.

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