USA v. Jose Mendoza-Delgado

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USA v. Jose Mendoza-Delgado

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Case: 09-40559

Document: 00511173655

Page: 1

Date Filed: 07/14/2010

IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED
N o . 09-40559 C o n fe r e n c e Calendar July 14, 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 ALFREDO MENDOZA-DELGADO, 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. 2:09-CR-15-1

O N REMAND FROM THE SUPREME COURT OF THE UNITED STATES B e fo r e KING, JOLLY, and SOUTHWICK, Circuit Judges. P E R CURIAM:* J o s e Alfredo Mendoza-Delgado (Mendoza) pleaded guilty to being found u n l a w fu lly in the United States following deportation and conviction of an a g g r a v a t e d felony and was sentenced to a 24-month term of imprisonment. Mendoza appealed his sentence, arguing that his second drug possession offense s h o u ld not have been considered an aggravated felony for purposes of U.S.S.G. § 2L1.2(b)(1)(C) because the Government did not establish that the offense was
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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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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Case: 09-40559

Document: 00511173655 Page: 2 No. 09-40559

Date Filed: 07/14/2010

p r o s e c u t e d under state recidivism laws providing Mendoza with notice and p r o c e d u r a l protections commensurate with those prescribed by 21 U.S.C. § 851. We affirmed the judgment of the district court, relying on our decision in United S ta te s v. Cepeda-Rios, 530 F.3d 333, 335-36 (5th Cir. 2008). United States v. M e n d o z a -D e lg a d o , No. 09-40559 (5th Cir. Dec. 15, 2009). A fte r Mendoza petitioned for a writ of certiorari, the Supreme Court v a c a t e d our decision and remanded the case for consideration in light of C a r a c h u r i-R o s e n d o v. Holder, __ S. Ct. __, 2010 WL 2346552 (June 14, 2010) (N o . 09-60). Mendoza-Delgado v. United States, No. 09-8474, slip op. (June 21, 2 0 1 0 ). The Court in Carachuri-Rosendo held that "when a defendant has been c o n v ic t e d of a simple possession offense that has not been enhanced based on the fa c t of a prior conviction, he has not been `convicted' under [8 U.S.C.] § 1229b(a)(3) of a `felony punishable' as such `under the Controlled Substances A c t ,' 18 U.S.C. § 924(c)(2)." 2010 WL 2346552, at *11. In accordance with the S u p r e m e Court's ruling in Carachuri-Rosendo, we VACATE the sentence and R E M A N D for resentencing.

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