United States v. Renee Casimiro

Case: 10-20011 Document: 00511221644 Page: 1 Date Filed: 09/01/2010
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
September 1, 2010
No. 10-20011
Summary Calendar Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
RENEE SALGADO CASIMIRO, also known as Mojica Alberto Vaca, also known
as Renee Gacimido Salgodor, also known as Alberto Mojica Vaca, also known as
Renee Salgado-Casimiro, also known as Ruben Mendez Mojica, also known as
Alberto Mojica,
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.
PER CURIAM:*
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 (2006), a second state conviction for simple
possession of a controlled substance qualifies as an aggravated felony that
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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: 10-20011 Document: 00511221644 Page: 2 Date Filed: 09/01/2010
No. 10-20011
supports the imposition of an eight-level enhancement under U.S.C.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, 2010 WL 2346552 at *11 (June 14, 2010) (No. 09-60). 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.
2