United States v. Villa-Gutierrez

222 F. App'x 393

Opinion

ON REMAND FROM THE SUPREME COURT OF THE UNITED STATES

PER CURIAM: *

This court affirmed the conviction and sentence of Gaudencio Villa-Gutierrez. See United States v. Villa-Gutierrez, 169 Fed.Appx. 185 (5th Cir.2006). The Supreme Court vacated and remanded for further consideration in light of Lopez v. Gonzales, — U.S. -, 127 S.Ct. 625, 166 L.Ed.2d 462 (2006). We requested and received supplemental briefs addressing the impact of Lopez.

In Lopez, the Supreme Court held that unless a state possession offense is punishable as a felony under the Controlled Substances Act (“CSA”), it is not an “aggravated felony” for sentencing purposes under 8 U.S.C. § 1101(a)(43). See Lopez, 127 S.Ct. at 631. Villa-Gutierrez argues, and the Government concedes, that under Lopez, his prior conviction is not an “aggravated felony” for sentencing enhancement purposes under U.S.S.G. § 2L1.2(b)(l)(c) because it was for an offense not punishable as a felony under the CSA. 1 We agree. Accordingly, we affirm Villa-Gutierrez’s conviction, vacate his sentence, and remand the case for resentencing in light of Lopez.

AFFIRMED IN PART, VACATED IN PART, REMANDED FOR RESEN-TENCING.

* Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4.

1 . Villa-Gutierrez concedes that Lopez does not affect our prior decision to affirm his conviction.