United States v. Ramirez-Estrada

284 F. App'x 489

Opinion

MEMORANDUM **

Jose Angel Ramirez-Estrada appeals from the 33-month sentence imposed following his guilty-plea conviction for being a deported alien found in the United States, in violation of 8 U.S.C. § 1326. We have jurisdiction pursuant to 28 U.S.C. § 1291, and we vacate and remand.

Ramirez-Estrada contends that the district court erred in determining that his Utah state convictions for possession of a controlled substance qualify as aggravated felony convictions for sentencing enhancement purposes. Subsequent to Ramirez-Estrada’s sentencing, the Supreme Court decided Lopez v. Gonzales, 549 U.S. 47, 127 S.Ct. 625, 633, 166 L.Ed.2d 462 (2006), in which holds that “a state offense constitutes a ‘felony punishable under the Controlled Substances Act’ only if it proscribes conduct punishable as a felony under that federal law.” Because the district court did not have the benefit of the Supreme Court’s decision in Lopez at the time that it sentenced Ramirez-Estrada, we vacate the sentence and remand for resentencing. See United States v. Figueroa-Ocampo, 494 F.3d 1211, 1217 (9th Cir.2007) (vacating and remanding in light of Lopez).

We express no opinion on the issue whether the 8-level enhancement is appropriate because Ramirez-Estrada’s possession offenses qualify as “recidivist possession” under the Controlled Substances Act. See Lopez, 127 S.Ct. at 630 n. 6.

VACATED and REMANDED.

Footnotes

**

This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.