*

Pursuant to 5 TH C IR

. R. 47.5, the court has determined that this opinion should not be published and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 5 TH C IR

. R. 47.5.4. United States Court of Appeals

Fifth Circuit



## FILED

October 13, 2005

Charles R. Fulbruge III

Clerk IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 04-41656

Summary Calendar

UNITED STATES OF AMERICA,

Plaint iffAppellee,

versus

SALVADOR MATA-HERNANDEZ,

DefendantAppellant.

------------------------------------------------------------- Appeal from the United States District Court

for the Southern District of Texas

USDC No. 7:04-CR-701-ALL

--------------------------------------------------------------

Before BARKSDALE, STEWART and CLEMENT, Circuit Judges.

PER CURIAM: *

Salvador Mata-Hernandez appeals his sentence imposed following his guilty plea conviction

for illegal reentry into the United States following deportation. Mata-Hernandez was sentenced to

a term of imprisonment of 41 months to be followed by a two-year term of supervised release.-2-

Mata-Hernandez contends that his Iowa incest co nvict io n is not a “crime of violence” as

defined by U.S.S.G. § 2L1.2(b)(1)(A)(ii) and this court’s jurisprudence because it does not have as

an element the use or attempted use of force. The Government concedes error.

Section § 2L1.2 of the United States Sentencing Guidelines provides that the offense level for

unlawfully entering or remaining in the United States shall be increased by 16 levels if the defendant

has a prior conviction for a “crime of violence.” U.S.S.G. § 2L1.2(b)(1)(A)(ii). The commentary

to U.S.S.G. § 2L1.2 defines “crime of violence” as any of certain listed offenses or “any offense under

federal, state, or local law that has as an element the use, attempted use, or threatened use of physical

force against the person of another.” U.S.S.G. § 2L1.2, comment. (n.1(B)(iii)). Because incest is

not a listed offense, the offens e must involve the use or threatened use of force to be a “crime of

violence” in this context.

Iowa Code § 726.2 provides that a

person, except a child as defined in section 702.5, who performs a sex act with

another wh o m t he person knows to be related to the person, either legitimately or

illegit imat ely, as an ancestor, descendant, brother or sister of the whole or half blood,

aunt, uncle, niece, or nephew, commits incest.

The commission of the of f ense does not require the use of physical force against a person.

See United States v. Vargas-Duran

, 356 F.3d 598, 600 (5th Cir.), cert. denied

, 541 U.S. 965 (2004).

Thus, it was not a crime of violence warranting a 16-level enhancement pursuant to U.S.S.G. §

2L1.2(b)(1)(A)(ii).

The sentence is vacated and the case is remanded to the district court for resentencing.

Mata-Hernandez also argues that he should be resentenced because the district court erred

in sentencing him under a mandatory guidelines scheme invalidated by United States v. Booker

, 125-3-

S. Ct. 738 (2005). Given that Mata-Hernandez’s sentence has been vacated, it is not necessary to

address the Booker

issue. See United States v. Southerland , 405 F.3d 263, 270 (5th Cir. 2005).

Mata-Hernandez’s ar gument t hat the treatment of prior convictions as sentencing factors

rather than offense elements under 18 U.S.C. § 1326(b)(1), (b)(2) is unconstitutional is foreclosed

by Almendarez-Torres v. United States , 523 U.S. 224 (1998).

SENTENCE VACATED; CASE REMANDED TO THE DISTRIC T COURT FOR

RESENTENCING.