Case: 17-20644 Document: 00514685223 Page: 1 Date Filed: 10/17/2018 IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT United States Court of Appeals No. 17-20644 Fifth Circuit FILED October 17, 2018 UNITED STATES OF AMERICA, Lyle W. Cayce Clerk Plaintiff - Appellee v. RODOLFO NUNEZ-MEDRANO, Defendant - Appellant Appeal from the United States District Court for the Southern District of Texas USDC No. 4:17-CR-171-1 Before KING, ELROD, and HAYNES, Circuit Judges. PER CURIAM:* Rodolfo Nunez-Medrano challenges the length of his prison sentence. Following his guilty plea for reentering the United States without authorization after removal, the district court sentenced Nunez-Medrano to serve 84 months in prison. But Nunez-Medrano contends that the district court erroneously enhanced his sentence because it wrongly concluded that his prior deportation followed a conviction for a crime of violence. * 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. Case: 17-20644 Document: 00514685223 Page: 2 Date Filed: 10/17/2018 No. 17-20644 For the reasons explained below, we AFFIRM the district court’s judgment, but we REMAND for the district court to reform the judgment to reflect a conviction under 8 U.S.C. § 1326(b)(1), not § 1326(b)(2). I. In 2005, a Texas state court convicted Nunez-Medrano, a Mexican national, of conspiracy to commit aggravated robbery. The state court sentenced Nunez-Medrano to 15 years in prison; he served about 4 years of his sentence before being paroled. Upon his parole, federal immigration officials deported Nunez-Medrano to Mexico. Nunez-Medrano returned to the United States in 2012 without authorization. A few months after returning to the United States, Texas officials arrested Nunez-Medrano on drug charges. Federal authorities subsequently charged Nunez-Medrano with unlawfully reentering the United States following removal. See 8 U.S.C. § 1326(a). Nunez-Medrano pleaded guilty. Applying the 2011 edition of the U.S. Sentencing Guidelines (the “Guidelines”), the U.S. Probation Department (“Probation”) calculated Nunez-Medrano’s sentencing range as 77 to 96 months in prison. In reaching this result, Probation determined that Nunez-Medrano’s base offense level was 8. It then added a 16-level sentencing enhancement because it concluded his aggravated-robbery conviction qualified as a “crime of violence” under the Guidelines. See U.S. Sentencing Guidelines Manual § 2L1.2(b)(1)(A) (U.S. Sentencing Comm’n 2011). It also reduced Nunez- Medrano’s offense level by 3 points for acceptance of responsibility, which brought his total offense level to 21. And it calculated Nunez-Medrano’s criminal-history score to be 14. Probation also determined that under § 1326(b)(2), Nunez-Medrano was subject to a maximum sentence of 20 years in prison because his aggravated-robbery conviction constituted a conviction for an “aggravated felony” as used in that subsection. 2 Case: 17-20644 Document: 00514685223 Page: 3 Date Filed: 10/17/2018 No. 17-20644 Nunez-Medrano objected to Probation’s presentence report. He argued that his aggravated-robbery conviction was not a crime-of-violence conviction because Texas’s robbery statute criminalizes conduct broader than the generic offense of robbery and does not require the use, attempted use, or ...
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