United States v. Eugenio-Salvador

* 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this opinion should not be published and is not precedent except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.
United States Court of Appeals
Fifth Circuit
F I L E D
November 28, 2006
Charles R. Fulbruge III
Clerk
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 05-41198
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ENRIQUE EUGENIO-SALVADOR, also known as Jose
Hernandez-Ramirez,
Defendant-Appellant.
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Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 4:04-CR-174
--------------------
Before JOLLY, DENNIS, and CLEMENT, Circuit Judges.
PER CURIAM:*
Enrique Eugenio-Salvador (Eugenio) appeals from the sentence
imposed following his guilty plea to illegal reentry. He argues
for the first time on appeal that his Texas conviction for unlawful
restraint did not constitute a “crime of violence” for purposes of
a U.S.S.G. § 2L1.2(b)(1)(A)(ii)(2004) enhancement.
Our review is for plain error only. See United States v.
Villegas, 404 F.3d 355, 358 (2005). The 16-level enhancement is to
be made only if the prior offense is a violation of a statute that

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No. 05-41198
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has as an element “the use, attempted use, or threatened use of
physical force against the person of another.” United States v.
Calderon-Pena, 383 F.3d 254, 255 (5th Cir. 2004) (en banc). The
Texas unlawful restraint statute provides for the commission of the
offense in a number of different ways, some of which do not require
the use, attempted use, or threatened use of physical force against
a person. See TEX. PENAL CODE ANN. §§ 20.01 & 20.02 (Vernon 1995).
Because the Texas statute does not require that such use of force
be proved as an element of the offense, the district court plainly
erred in assigning the 16-level enhancement. See Calderon-Pena,
383 F.3d at 259-61; United States v. Garza-Lopez, 410 F.3d 268, 275
(5th Cir.), cert. denied, 126 S. Ct. 298 (2005). This error
affected his substantial rights and affected the fairness and
integrity of the judicial proceedings. See Garza-Lopez, 410 F.3d
at 275. Accordingly, Eugenio’s sentence is VACATED, and the case
is REMANDED for resentencing.

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