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Appeal from the United States District Court for the Western District of Texas

Plaintiff-Appellant Rafael Moreno-Arredondo (“Moreno”) was convicted on his plea of guilty to one count of illegal re-entry into the United States in violation of 8 U.S.C. � 1326. The government sought and obtained enhancement of Moreno’s sentence under � 1326(b)(2) based on pre-deportation convictions in Texas on two counts of committing the aggravated felony of Indecency with a Child. On appeal, Moreno asserts two claims: (1) His indictment was fatally defective for failing to allege his prior felony convictions as an element of the offense; and (2) the district court erred in calculating his sentence when it determined that the two prior child indecency sentences were for offenses that (a) did not occur on the same occasion and (b) were not consolidated for trial, and thus were not “related” as that term is used in determining his criminal history score under sentencing guideline � 4A1.2(a)(2). We reject Moreno’s attack on his indictment, which he concedes is foreclosed by the Supreme Court’s ruling in Almendarez-Torres v. United States*fn1 that � 1326(b)(2) does not create a separate criminal offense but instead sets out a sentencing factor.*fn2 Agreeing with Moreno, however, that the state convictions for which he was sentenced more than a decade earlier were for offenses that “occurred on the same occasion”*fn3 and thus were “related” for purposes of � 4A1.2.(a)(2), we vacate his sentence and remand to the district court for resentencing.

I. Facts and Proceedings

 
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