Opinion
No. 08-41337.
July 12, 2010.
Mark Michael Dowd, Assistant U.S. Attorney, James Lee Turner, Assistant U.S. Attorney, U.S. Attorney's Office, Houston, TX, for Plaintiff-Appellee.
Marjorie A. Meyers, Federal Public Defender, Federal Public Defender's Office, Timothy William Crooks, Assistant 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. 1:08-CR-697-ALL.
Before REAVLEY, JOLLY, and WIENER, Circuit Judges.
ON REMAND FROM THE SUPREME COURT OF THE UNITED STATES
Defendant-Appellant Francisco De Jesus Rodriguez pleaded guilty to being found unlawfully in the United States after deportation following a conviction for an aggravated felony and was sentenced to a 33-month term of imprisonment. Rodriguez appealed his sentence, arguing that (1) the second of his possession convictions should not have been considered an aggravated felony for purposes of U.S.S.G. § 2L1.2(b)(1)(C) because the government failed to prove that it was committed after his first possession conviction had become final, and (2) the government failed to prove that his second conviction was secured in compliance with 21 U.S.C. § 851. We affirmed the judgment of the district court. United States v. Rodriguez, 348 Fed.Appx. 960, 963 (5th Cir. 2009). After Rodriguez 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). Rodriguez v. United States, ___ U.S. ___, 130 S.Ct. 3457, ___ L.Ed.2d ___ (2010). In accordance with the Supreme Court's ruling in Carachuri-Rosendo, we VACATE the sentence and" REMAND for resentencing.