PER CURIAM:[fn*] [fn*] Pursuant to 5TH CIR. R. 47;5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
Daniel Ovidio Ramirez-Cuadra appeals his guilty plea conviction and 36-month sentence for illegal reentry after removal. Ramirez-Cuadra admitted at rearraignment that he was apprehended in Laredo, Texas in 2007 after having been removed from the United States in 2002. Ramirez-Cuadra argues that the district court committed plain error by applying the "aggravated felony" enhancement under 8 U.S.C. § 1326(b)(2) based on the finding that Ramirez-Cuadra had committed an aggravated felony in 2003 and had been removed in 2005. Ramirez-Cuadra argues that the fact of his 2005 removal was not alleged in his indictment, proven beyond a reasonable doubt at. trial, or admitted by him.
Because Ramirez-Cuadra did not object on this ground before the district court, plain error review applies to this issue. See United States v. Rojas-Luna, 522 F.3d 502, 504 (5th Cir. 2008). Based on our recent decision in Rojas-Luna, we conclude that the district court plainly erred in finding that Ramirez-Cuadra was removed in 2005 for purposes of increasing his sentence beyond the two year statutory maximum set forth in § 1326(a). See id. at 506 (" Almendarez-Torres [v. United States, 523 U.S. 224, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998)] is limited to prior convictions and . . . any other fact used to increase a sentence beyond a statutory maximum must be proven to a jury."). This error seriously affected the fairness and integrity of the proceedings. See id. In the exercise of our discretion, relief is warranted. See id. We vacate Ramirez-Cuadra's sentence and remand for resentencing consistent with Rojas-Luna.
Because Ramirez-Cuadra "is not subject to the sentencing enhancement under § 1326(b)(2), we need not address [Ramirez-Cuadra]'s argument that use of his [2005] conviction under § 1326(b)(2) is unconstitutional, although we note that such an argument is foreclosed under our precedent." Rojas-Luna, 522 F.3d at 507 n. 3.
CONVICTION AFFIRMED; SENTENCE VACATED; CASE REMANDED.