USA v. Melvin Reyes-Salgado

Filing

Case: 09-41215

Document: 00511198457

Page: 1

Date Filed: 08/09/2010

IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED
N o . 09-41215 S u m m a r y Calendar August 9, 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. M E L V I N VICENTE REYES-SALGADO, 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. 1:09-CR-888-1

B e fo r e WIENER, PRADO, and OWEN, Circuit Judges. PER CURIAM:* A p p e a lin g the judgment in a criminal case, Melvin Vicente Reyes-Salgado (R e y e s ) presents arguments that he initially conceded were foreclosed by United S ta te s v. Cepeda-Rios, 530 F.3d 333, 335-36 (5th Cir. 2008), which held that even a ft e r Lopez v. Gonzales, 549 U.S. 47 (2006), a second state conviction for simple p o s s e s s io n of a controlled substance qualifies as an aggravated felony that s u p p o r t s the imposition of an eight-level enhancement under U.S.S.G.

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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 09-41215

Document: 00511198457 Page: 2 No. 09-41215

Date Filed: 08/09/2010

§ 2L1.2(b)(1)(C). Because the arguments were foreclosed, he sought summary d is p o s it io n to enable him to seek further review. A fte r the summary-disposition motion was filed, the Supreme Court held in an immigration proceeding that "when a defendant has been convicted of a s im p le possession offense that has not been enhanced based on the fact of a prior c o n v ic t io n , he has not been `convicted' under [8 U.S.C.] § 1229b(a)(3) of a `felony p u n is h a b le ' as such `under the Controlled Substances Act.'" Carachuri-Rosendo v . Holder, 2010 WL 2346552 at *11 (June 14, 2010) (No. 09-60). The Supreme C o u r t noted that "[t]he mere possibility that the defendant's conduct, coupled w it h facts outside of the record of conviction, could have authorized a felony c o n v ic t io n under federal law is insufficient . . . ." Id. Reyes now moves, without opposition, to vacate and remand for r e s e n t e n c in g . IT IS ORDERED that, in light of Carachuri-Rosendo, Reyes's m o t io n to vacate his sentence and to remand his case to the district court for r e s e n t e n c in g is GRANTED. The motion to issue the mandate forthwith is also G R A N T E D . The motion for summary disposition is DENIED.

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