Opinion
No. 09-40559 Conference Calendar.
July 14, 2010.
James Lee Turner, Assistant U.S. Attorney, U.S. Attorney's Office, Houston, TX, for Plaintiff-Appellee.
Marjorie A. Meyers, Federal Public Defender, Margaret Christina Ling, Assistant Federal Public Defender, Federal Public Defender's Office, Houston, TX, for Defendant-Appellant.
Appeal from the United States District Court for the Southern District of Texas, USDC No. 2:09-CR-15-1.
Before KING, JOLLY, and SOUTHWICK, Circuit Judges.
ON REMAND FROM THE SUPREME COURT OF THE UNITED STATES
Jose Alfredo Mendoza-Delgado (Mendoza) pleaded guilty to being found unlawfully in the United States following deportation and conviction of an aggravated felony and was sentenced to a 24-month term of imprisonment. Mendoza appealed his sentence, arguing that his second drug possession offense should not have been considered an aggravated felony for purposes of U.S.S.G. § 2L1.2(b)(1)(C) because the Government did not establish that the offense was prosecuted under state recidivism laws providing Mendoza with notice and procedural protections commensurate with those prescribed by 21 U.S.C. § 851. We affirmed the judgment of the district court, relying on our decision in United States v. Cepeda-Rios, 530 F.3d 333, 335-36 (5th Cir. 2008). United States v. Mendoza-Delgado, No. 09-40559 (5th Cir. Dec.15, 2009).
After Mendoza petitioned for a writ of certiorari, the Supreme Court vacated our decision and remanded the case for consideration in light of Carachuri-Rosendo v. Holder, ___ U.S. ___, 130 S.Ct. 2577, 177 L.Ed.2d 68 (2010). Mendoza-Delgado v. United States, ___ U.S. ___, 130 S.Ct. 3457, ___ L.Ed.2d ___(2010). The Court in Carachuri-Rosendo held that "when a defendant has been convicted of a simple possession offense that has not been enhanced based on the fact of a prior conviction, he has not been `convicted' under [8 U.S.C.] § 1229b(a)(3) of a `felony punishable' as such `under the Controlled Substances Act,' 18 U.S.C. § 924(c)(2)." 130 S.Ct. at 2589. In accordance with the Supreme Court's ruling in Carachuri-Rosendo, we VACATE the sentence and REMAND for resentencing.