United States v. Tejeda-Fuentes

* 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this opinion should not be published and is not precedent except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
July 31, 2007
Charles R. Fulbruge III
Clerk
UNITED STATES COURT OF APPEALS
FIFTH CIRCUIT
No. 06-51283
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
WILFREDO ARNALDO TEJEDA-FUENTES,
Defendant-Appellant.
Appeals from the United States District Court
for the Western District of Texas
(2:06-CR-268-ALL)
Before DAVIS, BARKSDALE, and BENAVIDES, Circuit Judges.
PER CURIAM:*
Wilfredo Arnaldo Tejeda-Fuentes raises two challenges to his
sentence for unlawful reentry, in violation of 8 U.S.C. § 1326.
Both challenges were raised in district court. Its interpretation
and application of the Sentencing Guidelines are reviewed de novo.
United States v. Fierro-Reyna, 466 F.3d 324, 326 (5th Cir. 2006).
First, Tejeda-Fuentes contends the district court erroneously
imposed a 16-level enhancement pursuant to Guidelines

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§ 2L1.2(b)(1)(A)(ii) by mischaracterizing his prior Texas Penal
Code § 22.01(a)(1) assault conviction as a “crime of violence”. In
the light of United States v. Villegas-Hernandez, 468 F.3d 874,
880-82 (5th Cir. 2006) (holding force is not an element of a §
22.01 offense because bodily injury may be achieved without use of
force), cert. denied, 127 S. Ct. 1351 (2007), which was issued
after sentencing in this case, the enhancement was erroneous.
Because the Government has not shown the error did not affect the
district court’s sentencing, the error was not harmless. See
United States v. Lopez-Urbina, 434 F.3d 750, 765 (5th Cir.), cert.
denied, 126 S. Ct. 672 (2005).
Second, Tejeda-Fuentes claims § 1326(b)’s treatment of prior
felony convictions as sentencing factors is unconstitutional in the
light of Apprendi v. New Jersey, 530 U.S. 466 (2000). Tejada-
Fuentes concedes this challenge is foreclosed by Almendarez-Torres
v. United States, 523 U.S. 224, 235 (1998), but raises it here to
preserve it for further review.
For the foregoing reasons, we AFFIRM Tejada-Fuentes’
conviction; VACATE his sentence; and REMAND this matter to district
court for resentencing.
CONVICTION AFFIRMED; SENTENCE VACATED; REMANDED

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