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U.S. v. PEREZ-PENA

No. 05-5054.

453 F.3d 236 (2006)

UNITED STATES of America, Plaintiff-Appellant, v. Enrique PEREZ-PENA, Defendant-Appellee.

United States Court of Appeals, Fourth Circuit.

Decided: June 30, 2006.

Attorney(s) appearing for the Case

ARGUED: Eric David Goulian, Assistant United States Attorney, Office of the United States Attorney, Raleigh, North Carolina, for Appellant. George Alan DuBois, Assistant Federal Public Defender, Office of the Federal Public Defender, Raleigh, North Carolina, for Appellee. ON BRIEF: Frank D. Whitney, United States Attorney, Anne M. Hayes, Assistant United States Attorney, Office of the United States Attorney, Raleigh, North Carolina, for Appellant. Thomas P. McNamara, Federal Public Defender, Raleigh, North Carolina, for Appellee.

Before WILKINS, Chief Judge, SHEDD, Circuit Judge, and HAMILTON, Senior Circuit Judge.

Vacated and remanded by published opinion. Chief Judge WILKINS wrote the opinion, in which Judge SHEDD and Senior Judge HAMILTON joined.

OPINION

WILKINS, Chief Judge:

The United States appeals Enrique Perez-Pena's sentence for illegally reentering the United States after being deported, see 8 U.S.C.A. § 1326(a), (b)(2) (West 2005). The district court imposed a below-guidelines variance sentence primarily to avoid an "unwarranted sentence...

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