Opinion
No. 06-40449 Summary Calendar.
March 21, 2007.
James Lee Turner, Assistant U.S. Attorney, U.S. Attorney's Office Southern District of Texas, Houston, TX, for Plaintiff-Appellee.
Timothy William Crooks, Assistant Federal Public Defender, Marjorie A. Meyers, Federal Public Defender, Federal Public Defender's Office Southern District of Texas, Houston, TX, for Defendant-Appellant.
Appeal from the United States District Court for the Southern District of Texas. USDC No. 1:05-CR-864.
Before JOLLY, DENNIS, and CLEMENT, Circuit Judges.
Juan Arevalo-Sanchez appeals from his guilty plea conviction and sentence for illegal reentry after deportation and following a conviction for an aggravated felony, in violation of 8 U.S.C. § 1326. Arevalo-Sanchez's constitutional challenge to § 1326(b) is foreclosed by Almendarez-Torres v. United States, 523 U.S. 224, 235, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998). Although Arevalo-Sanchez contends that Almendarez-Torres was incorrectly decided and that a majority of the Supreme Court would overrule Almendarez-Torres in light of Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), we have repeatedly rejected such arguments on the basis that Almendarez-Torres remains binding. See United States v. Garza-Lopez, 410 F.3d 268, 276 (5th Cir.), cert. denied, ___ U.S. ___, 126 S.Ct. 298, 163 L.Ed.2d 260 (2005). Arevalo-Sanchez properly concedes that his argument is foreclosed in light of Almendarez-Torres and circuit precedent, but he raises it here to preserve it for further review.
Arevalo-Sanchez contends that his 1993 and 1995 convictions for simple possession of a controlled substance should not have been treated as aggravated felonies for purposes of an eight-level enhancement under U.S.S.G. § 2L1.2(b)(1)(C). During the pendency of this case, the Supreme Court decided Lopez v. Gonzales, ___ U.S. ___, 127 S.Ct. 625, 633, 166 L.Ed.2d 462 (2006), which held that a state offense meets the definition of a "`felony punishable under the Controlled Substances Act' only if it proscribes conduct punishable as a felony under that federal law." In the light of Lopez, Arevalo-Sanchez's argument has merit. See United States v. Estrada-Mendoza, 475 F.3d 258, 260-61 (5th Cir. 2007). Arevalo-Sanchez's unopposed motion to remand his case for resentencing is GRANTED. Arevalo-Sanchez's conviction is AFFIRMED; Arevalo-Sanchez's sentence is VACATED and REMANDED for resentencing in accordance with Lopez. We express no opinion on the issue whether the § 2L1.2(b)(1)(C) enhancement was appropriate because Arevalo-Sanchez's 1995 possession offense qualified as "recidivist possession." See Lopez, 127 S.Ct. at 630 n. 6; United States v. Sanchez-Villalobos, 412 F.3d 572, 576-77 (5th Cir. 2005).