USA v. Jose Paniagua

Filing

UNPUBLISHED OPINION FILED. [09-20805 Vacated and Remanded ] Judge: TMR , Judge: JLD , Judge: EBC Mandate pull date is 11/12/2010 for Appellant Jose Santo Perez Paniagua [09-20805]

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USA v. Jose Paniaguaase: 09-20805 C Document: 00511271226 Page: 1 Date Filed: 10/22/2010 Doc. 0 IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED N o . 09-20805 S u m m a r y Calendar October 22, 2010 Lyle W. Cayce Clerk U N IT E D STATES OF AMERICA, P la in t if f -A p p e lle e v. J O S E SANTO PEREZ PANIAGUA, also known as Edwardo Chavez, also known a s Jose Santo Felepe Paniag Perez, also known as Eduardo Chavez, also known a s Jose Santo Perez, also known as Jose Perez, D e fe n d a n t -A p p e lla n t A p p e a l from the United States District Court fo r the Southern District of Texas U S D C No. 4:09-CR-281-1 B e fo r e REAVLEY, DENNIS, and CLEMENT, Circuit Judges. PER CURIAM:* J o s e Santo Perez Paniagua (Perez Paniagua) pleaded guilty to illegally r e e n te r in g the United States and was sentenced to a prison term of 33 months, a t the bottom of the guidelines range, to be followed by three years of supervised r e l e a s e . He appeals his sentence, arguing that the district court improperly d e t e r m in e d that his second state conviction for simple drug possession was an 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. * Dockets.Justia.com Case: 09-20805 Document: 00511271226 Page: 2 Date Filed: 10/22/2010 No. 09-20805 a g g r a v a t e d felony for purposes of U.S.S.G. § 2L1.2(b)(1)(C)'s eight-level offensele v e l enhancement. In his opening brief, Perez Paniaugua correctly conceded that this a r g u m e n t was foreclosed by our then-current precedent. Shortly after Perez P a n ia g u a filed his brief, however, the Supreme Court decided C a r a c h u r i-R o s e n d o v. Holder, 130 S. Ct. 2577 (2010), holding that a second state o ffe n s e for simple drug possession is not an aggravated felony where that c o n v ic t io n "has not been enhanced based on the fact of a prior conviction." Carachuri-Rosendo, 130 S. Ct. at 2589. In its brief, the Government a c k n o w le d g e s that the record does not establish that Perez-Paniagua's second s im p le drug-possession conviction was based on his prior simple possession o ffe n s e . The Government thus concedes that the case should be remanded for r e s e n te n c in g . A c c o r d in g ly , Perez Paniagua's sentence is VACATED and the case is R E M A N D E D FOR RESENTENCING. 2

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