Summary Calendar UNITED STATES OF AMERICA v. Humberto Rodriguez-Lozano

* 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should not be published and is not precedent except under the limited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. 07-40516
Summary Calendar
UNITED STATES OF AMERICA
Plaintiff-Appellee
v.
HUMBERTO RODRIGUEZ-LOZANO
Defendant-Appellant
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 5:04-CR-461-1
Before JONES, Chief Judge, and CLEMENT and SOUTHWICK, Circuit Judges.
PER CURIAM:*
Humberto Rodriguez-Lozano (Rodriguez) appeals his sentence for the
revocation of his supervised release following his second conviction for illegal
entry into the United States. For the first time on appeal, Rodriguez argues that
his sentence exceeds the statutory maximum. The Government concedes that
the sentence exceeds the statutory maximum.
While Rodriguez did not raise this argument below, we nevertheless
review this issue de novo because Rodriguez asserts that his sentence exceeds
United States Court of Appeals
Fifth Circuit
F I L E D
April 25, 2008
Charles R. Fulbruge III
Clerk

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No. 07-40516
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the statutory maximum. See United States v. Del Barrio, 427 F.3d 280, 282 &
n.4 (5th Cir. 2005). Rodriguez’s conviction that resulted in the term of
supervised release that was revoked was for a second violation of 8 U.S.C.
§ 1325(a)(1), which allows for a maximum sentence of two years of imprisonment
and is a Class E felony. See § 1325(a); 18 U.S.C. § 3581(b)(5). Upon the
revocation of supervised release that was imposed for a conviction for a Class E
felony, the maximum sentence that may be imposed is one year of imprisonment.
18 U.S.C. § 3583(e)(3). Rodriguez’s sentence of 18 months of imprisonment
exceeds the statutory maximum. See id. Accordingly, we vacate Rodriguez’s
sentence and remand this case to the district court for resentencing.
VACATED AND REMANDED FOR RESENTENCING.

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