     Case: 09-20805     Document: 00511271226          Page: 1    Date Filed: 10/22/2010




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                 FILED
                                                                          October 22, 2010
                                     No. 09-20805
                                   Summary Calendar                         Lyle W. Cayce
                                                                                 Clerk

UNITED STATES OF AMERICA,

                                                   Plaintiff-Appellee

v.

JOSE SANTO PEREZ PANIAGUA, also known as Edwardo Chavez, also known
as Jose Santo Felepe Paniag Perez, also known as Eduardo Chavez, also known
as Jose Santo Perez, also known as Jose Perez,

                                                   Defendant-Appellant


                    Appeal from the United States District Court
                         for the Southern District of Texas
                              USDC No. 4:09-CR-281-1


Before REAVLEY, DENNIS, and CLEMENT, Circuit Judges.
PER CURIAM:*
        Jose Santo Perez Paniagua (Perez Paniagua) pleaded guilty to illegally
reentering the United States and was sentenced to a prison term of 33 months,
at the bottom of the guidelines range, to be followed by three years of supervised
release. He appeals his sentence, arguing that the district court improperly
determined that his second state conviction for simple drug possession was an



       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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: 09-20805    Document: 00511271226 Page: 2       Date Filed: 10/22/2010
                                 No. 09-20805

aggravated felony for purposes of U.S.S.G. § 2L1.2(b)(1)(C)’s eight-level offense-
level enhancement.
      In his opening brief, Perez Paniaugua correctly conceded that this
argument was foreclosed by our then-current precedent. Shortly after Perez
Paniagua    filed   his   brief,   however,   the   Supreme      Court   decided
Carachuri-Rosendo v. Holder, 130 S. Ct. 2577 (2010), holding that a second state
offense for simple drug possession is not an aggravated felony where that
conviction “has not been enhanced based on the fact of a prior conviction.”
Carachuri-Rosendo, 130 S. Ct. at 2589.          In its brief, the Government
acknowledges that the record does not establish that Perez-Paniagua’s second
simple drug-possession conviction was based on his prior simple possession
offense. The Government thus concedes that the case should be remanded for
resentencing.
      Accordingly, Perez Paniagua’s sentence is VACATED and the case is
REMANDED FOR RESENTENCING.




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