United States v. Bautista-Gonzalez , 267 F. App'x 380 ( 2008 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
February 28, 2008
No. 06-41106
Summary Calendar Charles R. Fulbruge III
Clerk
UNITED STATES OF AMERICA
Plaintiff-Appellee
v.
HECTOR IVAN BAUTISTA-GONZALEZ
Defendant-Appellant
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 2:06-CR-172-ALL
Before HIGGINBOTHAM, STEWART, and OWEN, Circuit Judges.
PER CURIAM:*
Hector Ivan Bautista-Gonzalez appeals the 24-month sentence he received
following his guilty plea conviction for illegal reentry, in violation of 8 U.S.C.
§ 1326. Bautista-Gonzalez contends that the district court misapplied the
Sentencing Guidelines by characterizing his prior Texas state felony drug
conviction for possession of a controlled substance as an “aggravated felony” for
purposes of U.S.S.G. § 2L1.2(b)(1)(C). Given the Supreme Court’s decision in
*
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should not be published and is not precedent except under the limited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.
No. 06-41106
Lopez v. Gonzales, 127 S. Ct. 625 (2006), Bautista-Gonzalez is correct that his
prior conviction is not an aggravated felony. See United States v.
Estrada-Mendoza, 475 F.3d 258, 259-61 (5th Cir. 2007).
The Government concedes that the district court erred in characterizing
the state offense as an aggravated felony and in imposing an eight-level increase
pursuant to § 2L1.2(b)(1)(C), but contends that the error was harmless. The
Government has failed to meet its burden of showing that the error was
harmless. See FED. R. CRIM. P. 52(a); United States v. Pineiro, 410 F.3d 282, 286
(5th Cir. 2005); United States v. Mares, 402 F.3d 511, 520 n.9 (5th Cir. 2005).
We VACATE Bautista-Gonzalez’s sentence and REMAND for
resentencing.
2