U.S. v. Ramirez-Alvarez

Full title: UNITED STATES of America, Plaintiff-Appellee, v. Jesus RAMIREZ-ALVAREZ…

Court: United States Court of Appeals, Fifth Circuit

Date published: May 15, 2007

227 F. App'x 418 (5th Cir. 2007)

Opinion

No. 06-40115.

May 15, 2007.

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

Marjorie A. Meyers, Federal Public Defender, Margaret Christina Ling, Assistant 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 (05-CR-686).

Before JOLLY, DeMOSS, and STEWART, Circuit Judges.

ON REMAND FROM THE SUPREME COURT OF THE UNITED STATES

PER CURIAM:[fn*] [fn*] Pursuant to 5th Cir. R. 47.5, the Court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4.

This court previously affirmed the conviction and sentence of Appellant, Jesus Ramirez-Alvarez. United States v. Ramirez-Alvarez, 202 Fed.Appx. 828 (5th Cir. 2006). On March 30, 2007, the Supreme Court vacated our judgment in this case and remanded the case to this court for further consideration in light of Lopez v. Gonzales, ___ U.S. ___, 127 S.Ct. 625, 166 L.Ed.2d 462 (2006).

Following the Supreme Court's remand we received supplemental letter briefs from both parties with respect to the impact of Lopez. The government concedes and we agree that, under Lopez, the district court erred in imposing an eight-level enhancement for Appellant's prior Tex as controlled substance conviction.² Ramirez remains in custody in federal prison, with a projected release date of March 8, 2008. Accordingly, the appeal is not moot. See United States v. Rosenbaum-Alanis, 483 F.3d 381 (5th Cir. 2007).

2 A second basis for the eight-level enhancement was Ramirez's prior 2002 illegal reentry conviction, which itself can qualify as an aggravated felony if the alien was previously deported on the basis of a separate aggravated felony. See 8 U.S.C. § 1101(a)(43)(O). However, the parties agree that the illegal reentry conviction is not an aggravated felony here, because it merely followed the Texas controlled substance conviction, which is not an aggravated felony under Lopez.

For the foregoing reasons, we AFFIRM amirez's conviction, VACATE his sentence, and REMAND for resentencing in accordance with Lopez.