USA v. Reyes-Bautista

Filing 920070226


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United States Court of Appeals Fifth Circuit F I L E D IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT _____________________ No. 05-40022 ____________________ UNITED STATES OF AMERICA, Plaintiff-Appellee, v. MAGDALENO REYES-BAUTISTA, Defendant-Appellant. __________________ Appeal from the United States District Court for the Southern District of Texas USDC No. 5:04-CR-1494-ALL __________________ ON REMAND FROM THE SUPREME COURT OF THE UNITED STATES Before JOLLY, DAVIS, and OWEN, Circuit Judges. PER CURIAM:* In our previous opinion in this case, we affirmed DefendantAppellant Reyes-Bautista's conviction but vacated his sentence and remanded his case for resentencing consistent with United February 26, 2007 Charles R. Fulbruge III Clerk 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 R. 47.5, the Court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 1 * States v. Booker and United States v. Fanfan.1 Although we vacated Reyes-Bautista's sentence, we rejected his argument that the district court mischaracterized his state felony conviction for possession of a controlled substance as an "aggravated felony" for purposes of U.S.S.G. 2L1.2(b)(1)(C).2 After Lopez v. Gonzalez3 was decided, the Supreme Court vacated our judgment and remanded this case for reconsideration in light of Lopez. Upon reconsideration and in light of Lopez, we conclude that, in addition to the Fanfan error, the district court erred by characterizing Reyes-Bautista's state felony as an "aggravated felony" and enhancing his sentence under U.S.S.G. 2L1.2(b)(1)(C).4 The conviction is AFFIRMED, but we VACATE Reyes-Bautista's sentence and REMAND the case for resentencing consistent with our opinion on February 21, 2006 and the Supreme Court's decision in Lopez. See United States v. Reyes-Bautista, 167 F. App'x 996, 997 (5th Cir. 2006) (unpublished) (per curiam). 2 1 Id. 127 S.Ct. 625 (2006) 3 See United States v. Estrada-Mendoza, 475 F.3d 258 (5th Cir. 2007). 2 4

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