U.S. v. Berber-Ramirez

Full title: UNITED STATES of America, Plaintiff-Appellee Marisol BERBER-RAMIREZ…

Court: United States Court of Appeals, Fifth Circuit

Date published: Aug 16, 2007

235 F. App'x 339 (5th Cir. 2007)

Opinion

No. 06-41763, Summary Calendar.

August 16, 2007.

James Lee Turner, Assistant U.S. Attorney, U.S. Attorney's Office, Southern District of Texas, Houston, TX, for Plaintiff-Appellee.

Charles August Banker, III, Law Offices of Charles A. Banker, III, McAllen, TX, for Defendant-Appellant.

Appeal from the United States District Court for the Southern District of Texas, USDC No. 1:06-CR-380-ALL.

Before REAVLEY, SMITH, and STEWART, Circuit Judges.

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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.

Marisol Berber-Ramirez appeals from her 24-month sentence resulting from her guilty-plea conviction for illegal reentry, in violation of 8 U.S.C. § 1326.

Berber-Ramirez argues that the district court misapplied the Sentencing Guidelines by characterizing her state felony conviction for possession of a controlled substance as an "aggravated felony" for purposes of U.S.S.G. 2L1.2(b)(1).

We review Berber-Ramirez's challenge to the district court's application of the Sentencing Guidelines de novo. See United States v. Villegas, 404 F.3d 355, 359-61 (5th Cir. 2005). As the Government concedes, Berber-Ramirez's argument has merit in light of the Supreme Court's decision in Lopez v. Gonzales, ___ U.S. ___, 127 S.Ct. 625, 166 L.Ed.2d 462 (2006). See United States v. Estrada-Mendoza, 475 F.3d 258, 259-61 (5th Cir.), cert. denied, ___ U.S. ___, 127 S.Ct. 1845, 167 L.Ed.2d 340 (2007). Accordingly, Berber-Ramirez's sentence is vacated, and the case is remanded for resentencing in light of Lopez.

SENTENCE VACATED; REMANDED FOR RESENTENCING.