USA v. Moris Jimenez-Rivas

Filing

Case: 10-40052

Document: 00511200660

Page: 1

Date Filed: 08/11/2010

IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED
N o . 10-40052 S u m m a r y Calendar August 11, 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 O R IS JIMENEZ-RIVAS, 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-789-1

B e fo r e KING, BENAVIDES, and ELROD, Circuit Judges. P E R CURIAM:* A p p e a lin g the judgment in a criminal case, Moris Jimenez-Rivas presents a r g u m e n t s that he initially conceded were foreclosed by United States v. C e p e d a -R io s , 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 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.

*

Case: 10-40052

Document: 00511200660 Page: 2 No. 10-40052

Date Filed: 08/11/2010

§ 2L1.2(b)(1)(C).

Because the arguments were foreclosed, the Government

m o v e d for a summary affirmance, or in the alternative, to suspend the appeal. S u b s e q u e n t to the Government's motion, the Supreme Court held in an im m ig r a t io n proceeding that "when a defendant has been convicted of a simple p o s s e s s io n 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. Jimenez-Rivas now moves, without opposition, to vacate and remand for r e s e n t e n c i n g . IT IS ORDERED that, in light of Carachuri-Rosendo, JimenezR iv a s 's motion to vacate his sentence and to remand his case to the district court fo r resentencing is GRANTED. The motion to issue the mandate forthwith is a ls o GRANTED. As the Government has not opposed the motion to vacate, its p r io r motions for summary affirmance and to suspend the appeal are DENIED.

2