TX Unauthorized Use of Motor Vehicle Conviction Not an Agg Felony

US v. Perez-Gutierrez, No. 07-2129, 12/18/08 - 8 USC 1326 case in which parties did not dispute below that defendant’s Texas conviction for unauthorized use of a vehicle was an aggravated felony that justified an eight level increase. Defendant had pled, and his agreement contained an appeal waiver. On appeal, the government confessed error and chose not to seek enforcement of the waiver. The 10th agreed that error had occurred and that defendant’s offense level should have been increased by four, not eight, levels. (New, appointed counsel on appeal had filed an Anders brief because a 5th Circuit case had held that the offense was an aggravated felony. Yet the 10th had subsequently taken the opposite position and explicitly rejected the 5th’s position, making the appeal more than a little non-frivolous. Oops!).