United States v. Castillo-Palafox

* 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this opinion should not be published and is not precedent except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
June 4, 2007
Charles R. Fulbruge III
Clerk
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 06-50411
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JOSE GILBERTO CASTILLO-PALAFOX, also known as Roberto Castillo-
Palacios, also known as Jose Gilberto Castillo-Palacios,
Defendant-Appellant.
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Appeal from the United States District Court
for the Western District of Texas
USDC No. 6:05-CR-234-ALL
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Before DAVIS, BARKSDALE, and BENAVIDES, Circuit Judges.
PER CURIAM:*
Jose Gilberto Castillo-Palafox appeals his sentence for
illegal reentry after deportation. Castillo-Palafox contends,
for the first time on appeal, that the district court erred by
applying a 16-level increase to his offense level, based on its
finding that his 2002 state felony conviction for assault was a
crime of violence under U.S.S.G. § 2L1.2(b)(1)(A)(ii). Castillo-
Palafox’s assault offense was committed under TEX. PENAL CODE ANN.
§ 22.01(a)(1) and (b)(2) (Vernon 2003), which does not set forth

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1The government argues that section 22.01(a)(1) had use of
force as an element and is thus a crime of violence under section
2L1.2(b)(1)(A)(ii), citing United States v. Shelton, 325 F.3d 553
(5th Cir. 2003). However, Shelton was decided before this
Court’s en banc opinions in United States v. Vargas-Duran, 356
F.3d 598, 599–60 (5th Cir. 2004)(en banc), and United States v.
Calderon-Pena, 383 F.3d 254, 257 (5th Cir. 2004)(en banc). As
explained in Villegas-Hernandez, we clarified in those cases that
an offense is a crime of violence under section 2L1.2 only if the
use of force was both intentional and an element of the offense.
468 F.3d at 880-82.
a crime of violence under § 2L1.2(b)(1)(A)(ii). See § 2L1.2,
comment. (n.1(B)(iii)) (reflecting that simple assault is not an
enumerated offense constituting a “crime of violence”); United
States v. Villegas-Hernandez, 468 F.3d 874, 882 (5th Cir.
2006)(determining that use of force is not an element of
§ 22.01(a)(1)), cert. denied, 127 S. Ct. 1351 (2007). Given this
prejudicial error, Castillo-Palafox’s sentence is vacated and
this matter remanded for resentencing in accordance with this
opinion. See Villegas-Hernandez, 468 F.3d at 885; United States
v. Gracia-Cantu, 302 F.3d 308, 313 (5th Cir. 2002).1
SENTENCE VACATED; CASE REMANDED.

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