                                                                              United States Court of Appeals
                                                                                       Fifth Circuit
                                                                                    F I L E D
                  IN THE UNITED STATES COURT OF APPEALS                             February 2, 2007

                                FOR THE FIFTH CIRCUIT                           Charles R. Fulbruge III
                                                                                        Clerk
                                 _____________________

                                      No. 04-41020
                                 _____________________


       UNITED STATES OF AMERICA,

                                                      Plaintiff-Appellee,

                                             versus

       SIMON MENDEZ-LEYVA,

                                                      Defendant-Appellant.

            __________________________________________________

                   Appeal from the United States District Court
                    for the Southern District of Texas, Laredo
                            USDC No. 5:04-CR-358-1
            __________________________________________________

Before REAVLEY, HIGGINBOTHAM and CLEMENT, Circuit Judges.

                    ON REMAND FROM THE SUPREME COURT

PER CURIAM:*

       After Lopez v. Gonzales, 549 U.S. ____ (2006) was decided, the Supreme


       *
         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 R. 47.5, the Court has determined that this opinion should not be
published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
Court vacated the judgment and remanded this case. As we have ordered in United

States v. Estrada-Mendoza, No. 05-41627, on January 3, 2007, the enhancement for

aggravated felony, for a prior state felony drug conviction where the same conduct

would be only a misdemeanor under the federal law, cannot stand.

      The conviction is affirmed but the case is remanded for resentencing.

      REMANDED




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