                                                                                     United States Court of Appeals
                                                                                              Fifth Circuit
                                                                                            F I L E D
                            UNITED STATES COURT OF APPEALS
                                 FOR THE FIFTH CIRCUIT                                        May 15, 2007

                                                                                       Charles R. Fulbruge III
                                                                                               Clerk
                                           No. 06-40115


                                UNITED STATES OF AMERICA,

                                                                           Plaintiff-Appellee,

                                                VERSUS


                                   JESUS RAMIREZ-ALVAREZ,

                                                                        Defendant-Appellant.



                 Appeal from the United States District Court
                      for the Southern District of Texas
                                            (05-CR-686)


            ON REMAND FROM THE SUPREME COURT OF THE UNITED STATES
Before JOLLY, DeMOSS, and STEWART, Circuit Judges.

PER CURIAM:*

        This court previously affirmed the conviction and sentence of

Appellant, Jesus Ramirez-Alvarez. United States v. Ramirez-Alvarez,

202 F. App’x          828 (5th Cir. 2006). On March 30, 2007, the Supreme

Court vacated our judgment in this case and remanded the case to

this court for further consideration in light of Lopez v. Gonzales,

127 S.Ct. 625 (2006).

        Following the Supreme Court’s remand we received supplemental


        *
         Pursuant to 5th Cir. R. 47.5, the Court has determined that this opinion should not be published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.
letter briefs from both parties with respect to the impact of

Lopez. The government concedes and we agree that, under Lopez, the

district court erred in imposing an eight-level enhancement for

Appellant’s prior Texas controlled substance conviction.2 Ramirez

remains in custody in federal prison, with a projected release date

of March 8, 2008. Accordingly, the appeal is not moot. See United

States v. Rosenbaum-Alanis, __ F.3d __, No. 05-41400, 2007 WL

926832 (5th Cir. Mar. 29, 2007).

        For the foregoing reasons, we AFFIRM Ramirez’s conviction,

VACATE his sentence, and REMAND for resentencing in accordance with

Lopez.




        2
          A second basis for the eight-level enhancement was Ramirez’s prior 2002 illegal re-entry
conviction, which itself can qualify as an aggravated felony if the alien was previously deported on the
basis of a separate aggravated felony. See 8 U.S.C. § 1101(a)(43)(O). However, the parties agree that
the illegal re-entry conviction is not an aggravated felony here, because it merely followed the Texas
controlled substance conviction, which is not an aggravated felony under Lopez.
