U.S.
v.
Casimiro

United States Court of Appeals, Fifth CircuitSep 1, 2010
394 Fed. Appx. 89 (5th Cir. 2010)

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No. 10-20011 Summary Calendar.

September 1, 2010.

James Lee Turner, Assistant U.S. Attorney, U.S. Attorney's Office, Houston, TX, for Plaintiff-Appellee.

Rosa Alexander Eliades, Eliades Law PLLC, Houston, TX, for Defendant-Appellant.

Appeal from the United States District Court for the Southern District of Texas, UDC No. 4:09-CR-526-1.

Before JOLLY, GARZA, and STEWART, Circuit Judges.


Appealing the judgment in a criminal case, Renee Salgado Casimiro 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)(1)(C). Because the arguments were foreclosed at the time, the Government moved for summary affirmance.

After the summary-affirmance 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.

Casimiro now moves, without opposition, to vacate the district court's judgment and to remand for resentencing in light of Carachuri-Rosendo. Accordingly, IT IS ORDERED that, in light of Carachuri-Rosendo, Casimiro'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 Government's motions for summary affirmance and to suspend the briefing notice are DENIED.