USA v. Renee Casimiro

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USA v. Renee Casimiro

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Case: 10-20011

Document: 00511221644

Page: 1

Date Filed: 09/01/2010

IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED
N o . 10-20011 S u m m a r y Calendar September 1, 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 E N E E SALGADO CASIMIRO, also known as Mojica Alberto Vaca, also known a s Renee Gacimido Salgodor, also known as Alberto Mojica Vaca, also known as R e n e e Salgado-Casimiro, also known as Ruben Mendez Mojica, also known as A lb e r t o Mojica, 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 D C No. 4:09-CR-526-1

B e fo r e JOLLY, GARZA, and STEWART, Circuit Judges. P E R CURIAM:* A p p e a lin g the judgment in a criminal case, Renee Salgado Casimiro p r e s e n t s arguments that he initially conceded were foreclosed by United States v . Cepeda-Rios, 530 F.3d 333, 335-36 (5th Cir. 2008), which held that even after L o p e z 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
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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 10-20011

Document: 00511221644 Page: 2 No. 10-20011

Date Filed: 09/01/2010

s u p p o r t s the imposition of an eight-level enhancement under U.S.C.G. § 2L1.2(b)(1)(C). Because the arguments were foreclosed at the time, the

G o v e r n m e n t moved for summary affirmance. A fte r the summary-affirmance 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. C a s im ir o now moves, without opposition, to vacate the district court's ju d g m e n t and to remand for resentencing in light of Carachuri-Rosendo. Accordingly, IT IS ORDERED that, in light of Carachuri-Rosendo, Casimiro'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 Government's motions for summary affirmance and to suspend t h e briefing notice are DENIED.

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