          IN THE UNITED STATES COURT OF APPEALS
                   FOR THE FIFTH CIRCUIT United States Court of Appeals
                                                                     Fifth Circuit
                                                                   F I L E D
                                                                   August 24, 2007
                                No. 06-51248
                              Summary Calendar                  Charles R. Fulbruge III
                                                                        Clerk

UNITED STATES OF AMERICA

                                           Plaintiff-Appellee

v.

MARIO MARTINEZ-JIMENEZ

                                           Defendant-Appellant


                 Appeal from the United States District Court
                      for the Western District of Texas
                         USDC No. 2:06-CR-335-ALL


Before JOLLY, DENNIS, and PRADO, Circuit Judges.
PER CURIAM:*
      Mario Martinez-Jimenez (Martinez) appeals the sentence imposed by the
district court following his guilty-plea conviction for illegal reentry into the
United States following deportation. Martinez argues that the district court
erred by increasing his offense level under U.S.S.G. § 2L1.2(b)(1)(C) on the
ground that his 2005 Texas cocaine-possession conviction was an aggravated
felony. We review Martinez’s challenge to the district court’s application of the


      *
       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should not be published and is not precedent except under the limited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. 06-51248

Sentencing Guidelines de novo. See United States v. Villegas, 404 F.3d 355, 359
(5th Cir. 2005).
  Following the Supreme Court’s decision in Lopez v. Gonzales, 127 S. Ct. 625
(2006), this court decided United States v. Estrada-Mendoza, 475 F.3d 258, 259-
61 (5th Cir. 2007), and vacated in part and remanded for resentencing based on
the appellant’s challenge to the treatment of his prior Texas felony conviction for
possession of a controlled substance as a drug-trafficking offense and, thus, an
aggravated felony. Estrada-Mendoza directly controls the instant case.
   Although the Government does not contest Martinez’s contention that his
2005 conviction was not a drug-trafficking offense, it argues that Martinez’s
argument “ignores the recidivist possession exception noted by the Supreme
court in Lopez.” Under § 844(a), simple possession of a controlled substance, if
such offense is committed “after a prior conviction” is punishable as an
aggravated felony. Lopez, 127 S. Ct. at 630 n.6. The Government’s argument
is factually flawed, however, because Martinez’s           marijuana-possession
conviction was in 2006, which was after the 2005 cocaine-possession conviction.
Thus, the conviction that formed the basis for the enhancement did not occur
“after a prior conviction” under § 844(a). Martinez’s sentence is VACATED and
the case is REMANDED for resentencing, consistent with Lopez and Estrada-
Mendoza.




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