## IN THE UNI TED STAT ES COURT OFAPPEALS FOR THE FIF TH CIRCU IT

No. 11-10343 Summary Calendar

UNITED STATES OF AMERICA, Plaintiff-Appellee

v. MANUEL ALEJANDRO DURAN-MUNEZ, Defendant-Appellant

Appeals from the United States District Court for the Northern District of Texas USDC No. 3:10-CR-88-1

Before BENAVIDES, STEWART, and HIGGINSON, Circuit Judges. PER CURIAM: * 

### Manuel Alejandro Duran-Munez (Duran) appeals the 70-month sentence imposed following his guilty plea for illegal reentry after removal in violation of 8 U.S.C. § 1326. Duran argues that the district court erred when it enhanced his offense level pursuant to § 2L1.2(b)(1)(A)(ii) for unlawfull y r e m aining in the United States after a crime of violence conviction. 1 U n i te d S ta te s C o u rt o f A p p ea l s F i ft h C i rc u i t 

## F I L E D July 26, 2 012 Lyle W . Cayce Clerk

Pur sua nt to 5 T H C IR

. R. 47.5 , the cour t has det erm ined that this op inion sho uld not * be publ ish ed and is not pr ece dent excep t unde r the lim ite d cir cum st ance s se t for th in 5 T H C IR

. R. 47.5 .4. § 2L1.2 (b) (1) pr ovide s that “If the defe ndantprevio usl y was depo rte d, or unlaw full y 1
rem ained in the Unit ed Sta t e s a f t e r—(A) a convic tio n for a fel ony that is

. . . (ii) a cri me of 

### Case: 11-10343 Document: 00511934900 Page: 1 Date Filed: 07/26/2012

### No. 11-10343

Duran contends that the 16-level enhancement should not apply because there was no removal order i s sued “after” his crime of violence conviction and the prio r r e m o v a l order was not reinstated until after his arrest for illegal reentry. In our intervening decision in United States v. Nevares-Bustamante , 669 F.3d 209 (5th Cir. 2012), as the parties forthrightly acknowledged, we held “that

a defendant alleged to have unlawfully remained in the United States following

a qualifying conviction under U.S.S

. G. § 2L1.2(b)(1)(A) is subject to the § 2L1.2(b)(1)(A) enhancement only when a removal order is issued or reinstated after that conviction.” Id. at 213. The government acknowledges that its position that § 2L1.2(b)(1)(A) does not require a new or reinstated removal order to issue after the qualifying conviction was rejected by this c o urt in N e v a res -Bustamante

. The government also acknowledges that Duran’s removal order was reinstated after his arrest and, as a result, he had not “remained” in the United States after the issuance of the reinstated order. In light of Nevares-Bustamante, and the government’s conc e s s ions, we VACATE Duran’s sentence and REMAND for resentencing.

violenc e” the off

ens e level sha ll “inc reas e by 16 levels if the convic tio n rec eives cri mi nal his tor y poi nts unde r Chapt er Four. ” In tur n, the app lica tio n note s to § 2L1.2 ex p l a i n t h a t “ [ a] def enda nt sha ll be cons ide red to have unlaw full y r e m a i n e d in the Unit ed Sta tes if the def enda nt rem ained in the Unit ed Sta tes fol low ing a rem oval ord er iss ued aft er a convic tio n, regar dle ss of whet her the rem oval ord er wa s in res pons e to the convic tio n.” U. S. S. G. § 2L1.2 cm t. n. 1(A) (ii i). The Sup rem e Court has held that app lica tio n note s are autho rit ative. Stinso n v. U nitedState s , 508 U. S. 36, 38 (199 3). 

### 2 Case: 11-10343 Document: 00511934900 Page: 2 Date Filed: 07/26/2012