Case: 09-41210 Document: 00511285739 Page: 1 Date Filed: 11/05/2010




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                 FILED
                                                                          November 5, 2010
                                     No. 09-41210
                                   Summary Calendar                         Lyle W. Cayce
                                                                                 Clerk

UNITED STATES OF AMERICA,

                                                   Plaintiff-Appellee

v.

ERNESTO RUBEN CAVAZOS-RODRIGUEZ,

                                                   Defendant-Appellant


                    Appeal from the United States District Court
                         for the Southern District of Texas
                              USDC No. 2:09-CR-709-1


Before KING, D EMOSS, and DENNIS, Circuit Judges.
PER CURIAM:*
       Ernesto Ruben Cavazos-Rodriguez appeals his guilty plea conviction and
65-month sentence for illegal reentry after removal. Cavazos-Rodriguez argues
that the district court committed error, plain or otherwise, by applying the
“aggravated felony” enhancement under 8 U.S.C. § 1326(b)(2) based on the
finding that he had committed an aggravated felony in 2003 and had been
removed in 2004. Cavazos-Rodriguez argues that the fact of his 2004 removal



       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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: 09-41210 Document: 00511285739 Page: 2 Date Filed: 11/05/2010

                                    No. 09-41210

was not alleged in his indictment, proven beyond a reasonable doubt at trial, or
admitted by him.
      Because the indictment alleged only reentry after deportation without any
specification of the date of deportation, much less any reference to a prior
conviction, and because the Government failed to prove a deportation date at
rearraignment, we conclude that the district court plainly erred in finding that
Cavazos-Rodriguez was removed in 2004 for purposes of increasing his sentence
beyond the two-year statutory maximum set forth in § 1326(a). See United
States v. Rojas-Luna, 

, 506 (5th Cir. 2008) (“Almendarez-Torres is
limited to prior convictions and . . . any other fact used to increase a sentence
beyond a statutory maximum must be proven to a jury.”); Almendarez-Torres v.
United States, 

, 235 (1998).      This error seriously affected the
fairness and integrity of the proceedings. 

. In the
exercise of our discretion, relief is warranted. See 

Cavazos-
Rodriguez’s sentence and remand for resentencing consistent with Rojas-Luna.
      Because Cavazos-Rodriguez is not subject to the sentencing enhancement
under § 1326(b)(2), we need not address Cavazos-Rodriguez’s argument that the
district court reversibly erred by treating his 2003 Texas assault conviction as
an “aggravated felony” warranting an eight-level adjustment under U.S.S.G.
§ 2L1.2(b)(1)(C). 

n.3.
      CONVICTION AFFIRMED; SENTENCE VACATED; CASE REMANDED.




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