DocketNumber: 08-41337
Judges: Reavley, Jolly, Wiener
Filed Date: 7/12/2010
Status: Non-Precedential
Modified Date: 11/5/2024
Case: 08-41337 Document: 00511170368 Page: 1 Date Filed: 07/12/2010 IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT United States Court of Appeals Fifth Circuit FILED July 12, 2010 No. 08-41337 Lyle W. Cayce Clerk UNITED STATES OF AMERICA, Plaintiff-Appellee v. FRANCISCO DE JESUS RODRIGUEZ, Defendant-Appellant Appeal from the United States District Court for the Southern District of Texas USDC No.1:08-CR-697-ALL ON REMAND FROM THE SUPREME COURT OF THE UNITED STATES Before REAVLEY, JOLLY, and WIENER, Circuit Judges. PER CURIAM:* Defendant-Appellant Francisco De Jesus Rodriguez pleaded guilty to being found unlawfully in the United States after deportation following a conviction for an aggravated felony and was sentenced to a 33-month term of imprisonment. Rodriguez appealed his sentence, arguing that (1) the second of his possession convictions should not have been considered an aggravated felony for purposes of U.S.S.G. § 2L1.2(b)(1)(C) because the government failed to prove * 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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. Case: 08-41337 Document: 00511170368 Page: 2 Date Filed: 07/12/2010 No. 08-41337 that it was committed after his first possession conviction had become final, and (2) the government failed to prove that his second conviction was secured in compliance with21 U.S.C. § 851
. We affirmed the judgment of the district court. United States v. Rodriguez, 348 F. App’x 960, 963 (5th Cir. 2009). After Rodriguez petitioned for a writ of certiorari, the Supreme Court vacated our decision and remanded the case for consideration in light of Carachuri-Rosendo v. Holder, __S. Ct. __,2010 WL 2346552
(June 14, 2010) (No. 09-60). Rodriguez v. United States, __S. Ct.__,2010 WL 85958
(June 21, 2010) (No. 09-8474). In accordance with the Supreme Court’s ruling in Carachuri-Rosendo, we VACATE the sentence and REMAND for resentencing. 2