USA v. Ruben Lujano-Gonzalez

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USA v. Ruben Lujano-Gonzalez

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Case: 09-41203

Document: 00511189837

Page: 1

Date Filed: 07/30/2010

IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED
N o . 09-41203 S u m m a r y Calendar July 30, 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. R U B E N LUJANO-GONZALEZ, 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-676-1

B e fo r e KING, BENAVIDES, and ELROD, Circuit Judges. P E R CURIAM:* R u b e n Lujano-Gonzalez was convicted of one charge of illegal reentry into t h e United States and was sentenced to serve 21 months in prison as well as a t h r e e -y e a r term of supervised release. This appeal was filed to challenge his s e n te n c e , which he argues was improper because it was based on the district c o u r t's flawed determination that his prior state convictions for simple p o s s e s s io n of marijuana qualified as an aggravated felony for purposes of

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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 09-41203

Document: 00511189837 Page: 2 No. 09-41203

Date Filed: 07/30/2010

U .S .S .G . § 2L1.2(b)(1)(C).

In his opening brief, Lujano-Gonzalez correctly

c o n c e d e d that this argument was foreclosed by our prior caselaw. H o w e v e r , following the completion of briefing in this case, the Supreme C o u r t released Carachuri-Rosendo v. Holder, __ S. Ct. __, 2010 WL 2346552 (J u n e 14, 2010) (No. 09-60), which undermined our prior case law on this topic. Relying on Carachuri-Rosendo, Lujano-Gonzalez has filed an unopposed motion t o vacate the judgment, remand for resentencing, and issue the mandate fo r t h w i t h . That motion is GRANTED. The judgment of the district court is V A C A T E D , and this case is REMANDED FOR RESENTENCING. M A N D A T E SHALL ISSUE FORTHWITH. The

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