USA v. Reyes-Olvera

Filing 920070507

Opinion

United States Court of Appeals Fifth Circuit

F I L E D
IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT _____________________ No. 05-41116 _____________________ UNITED STATES OF AMERICA, Plaintiff - Appellee versus JESUS REYES-OLVERA, Defendant - Appellant. Appeal from the United States District Court for the Southern District of Texas, Laredo USDC No. 5:05-CR-288-ALL ON REMAND FROM THE SUPREME COURT OF THE UNITED STATES Before JOLLY, DeMOSS, and STEWART, Circuit Judges. PER CURIAM:* This court previously affirmed the conviction and sentence of the Appellant, Jesus Reyes-Olvera ("Reyes"). United States v. The Supreme May 7, 2007 Charles R. Fulbruge III Clerk

Reyes-Olvera, 203 Fed. Appx. 599 (5th Cir. 2006).

Court vacated and remanded the case for reconsideration in the light of Lopez v. Gonzalez, 127 S.Ct. 625 (2006). United States, 127 S.Ct. 1263 (2007). Ochoa-Perez v.

Following the Supreme

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 R. 47.5, the Court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.

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Court's remand, we requested and received supplemental letter briefs from both parties with respect to the impact of Lopez. The Government concedes, and we agree that, in the light of Lopez, the district court erred by enhancing Reyes's sentence on the basis of his Texas conviction for possession of cocaine. Reyes remains in custody in federal prison, with a projected release date of September 4, 2007. Accordingly, the appeal is not moot. See

United States v. Rosenbaum-Alanis, No. 05-41400, 2007 WL 926832 (5th Cir. March 29, 2007). For the foregoing reasons, we AFFIRM Reyes's conviction, VACATE his sentence, and REMAND for resentencing in accordance with Lopez.

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