United States v. Reyes-Olvera

227 F. App'x 366

• Court: Court of Appeals for the Fifth Circuit
• Decided: May 7, 2007
• Docket: 05-41116
• Status: Unpublished

Opinion

ON REMAND FROM THE SUPREME COURT OF THE UNITED STATES.

PER CURIAM: *

This court previously affirmed the conviction and sentence of the Appellant, Jesus Reyes-Olvera (“Reyes”). United States v. Reyes-Olvera, 208 Fed.Appx. 599 (5th Cir.2006). The Supreme Court vacated and remanded the case for reconsideration in the light of Lopez v. Gonzales, — U.S.-, 127 S.Ct. 625, 166 L.Ed.2d 462 (2006). Ochoa-Perez v. United States, — U.S.-, 127 S.Ct. 1263, 167 L.Ed.2d 66 (2007) . Following the Supreme Court’s remand, we requested and received supplemental letter briefs from both parties with respect to the impact of Lopez.

The Government concedes, and we agree that, in the light of Lopez, the district court erred by enhancing Reyes’s sentence on the basis of his Texas conviction for possession of cocaine. Reyes remains in custody in federal prison, with a projected release date of September 4, 2007. Accordingly, the appeal is not moot. See United States v. Rosenbaum-Alanis, 483 F.3d 381 (5th Cir.2007).

For the foregoing reasons, we AFFIRM Reyes’s conviction, VACATE his sentence, and REMAND for resentencing in accordance with Lopez.

* Pursuant to 5th Cir. R. 47.5, the Court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4.