Opinion
Criminal No. DR-01-CR-402 WWJ
January 6, 2002
ORDER
Before this court is the government's motion to vacate sentence in the above-styled and numbered criminal action. Defendant was sentenced to 21 months in prison after it was ruled that the presentence report had incorrectly classified defendant's prior conviction for cocaine possession as an "aggravated felony." The government argues that under United States v. Rivera, 263 F.3d 310 (5th Cir. 2001). a prior state felony conviction for possession of a controlled substance should be considered an "aggravated felony" for purposes of section 2L1.2(b) of the United States Sentencing Guidelines. The court did not consider Rivera in its order sustaining the objection to the presentence report. However, after careful consideration of Rivera, it is found that the sentence in this criminal action should stand.
Like United States v. Hinojosa-Lopez, 130 F.3d 691 (5th Cir. 1997), Rivera interpreted the sentencing guidelines applicable before substantial revisions took effect on November 1, 2001. As the court explained in its previous ruling, the interpretation of "aggravated felony" in Hinojosa-Lopez is no longer viable under the newly revised guidelines. Rivera relies directly on Hinojosa-Lopez for its reading of "aggravated felony" under U.S.S.G. § 2L1.2. See Rivera, 263 F.3d at 312. Thus, since Hinojosa-Lopez does not control the meaning of "aggravated felony" under the sentencing guidelines applied to this criminal action, Rivera is similarly inapposite. Accordingly, the government's motion to vacate sentence shall be, and is hereby,
DENIED.