United States v. Melvin Reyes-Salgado

389 F. App'x 377

• Court: Court of Appeals for the Fifth Circuit
• Decided: August 9, 2010
• Docket: 09-41215
• Status: Unpublished

Opinion

PER CURIAM: *

Appealing the judgment in a criminal case, Melvin Vicente Reyes-Salgado (Reyes) presents 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 Lopez v. Gonzales, 549 U.S. 47, 127 S.Ct. 625, 166 L.Ed.2d 462 (2006), a second state conviction for simple possession of a controlled substance qualifies as an aggravated felony that supports the imposition of an eight-level enhancement under U.S.S.G. § 2L1.2(b)(l)(C). Because the arguments were foreclosed, he sought summary disposition to enable him to seek further review.

After the summary-disposition motion was filed, the Supreme Court held in an immigration proceeding that “when a defendant has been convicted - of a simple possession offense that has not been enhanced based on the fact 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 Act.’ ” Carachuri-Rosendo v. Holder, — U.S. -, 130 S.Ct. 2577, 2589, 177 L.Ed.2d 68 (2010). The Supreme Court noted that “[t]he mere possibility that the defendant’s conduct, coupled with facts outside of the record of conviction, could have authorized a felony conviction under federal law is insufficient....” Id.

Reyes now moves, without opposition, to vacate and remand for resentencing. IT IS ORDERED that, in light of Carachuri-Rosendo, Reyes’s motion to vacate his sentence and to remand his case to the district court for resentencing is GRANTED. The motion to issue the mandate forthwith is also GRANTED. The motion for summary disposition is DENIED.

* Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4.