           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                           United States Court of Appeals
                                                                                    Fifth Circuit
                                                                                 F I L E D
                                     No. 06-50316                                 August 15, 2007
                                   Summary Calendar
                                                                              Charles R. Fulbruge III
                                                                                      Clerk
UNITED STATES OF AMERICA

                                                  Plaintiff-Appellee

v.

IVAN EDUARDO ROLDAN-OLIVARES

                                                  Defendant-Appellant


                   Appeal from the United States District Court
                        for the Western District of Texas
                             USDC No. 2:05-CR-154


Before JOLLY, DAVIS, and DeMOSS, Circuit Judges.
PER CURIAM:*
       Ivan Eduardo Roldan-Olivares pleaded guilty to illegal reentry into the
United States after deportation in violation of 8 U.S.C. § 1326. He appeals the
sentence imposed by the district court, arguing that the district court erred in
holding that his prior California conviction for possession of a controlled
substance was an aggravated felony under U.S.S.G. § 2L1.2(b)(1)(C) in view of
Lopez v. Gonzales, 127 S. Ct. 625 (2006). Because Roldan-Olivares did not raise


       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 06-50316

this issue in the district court, review is limited to plain error. United States v.
Walker, 410 F.3d 754, 759 (5th Cir. 2005). This court may correct a forfeited
error only when the appellant shows: (1) there is an error, (2) that is clear or
obvious, and (3) that affects his substantial rights. United States v. Olano, 507
U.S. 725, 731-37 (1993). The error must be clear or obvious under current law
at the time of the appeal. United States v. Salinas, 480 F.3d 750, 756 (5th Cir.
2007). If these factors are established, the decision to correct the forfeited error
is within the sound discretion of the court, and the court will not exercise that
discretion unless the error seriously affects the fairness, integrity, or public
reputation of judicial proceedings. Olano, 507 U.S. at 735-36.
      The Government argues that because Roldan-Olivares had two prior
convictions for possession of controlled substances, his second conviction
constituted recidivist possession under 21 U.S.C. § 844(a) and an “aggravated
felony” as defined by 8 U.S.C. § 1001(a)(43)(B). The Government argues that
because Roldan-Olivares’s second prior possession conviction was an aggravated
felony, the district court did not err in increasing his offense level by eight levels
pursuant to § 2L1.2(b)(1)(C).
      Roldan-Olivares was arrested for possession of a narcotic controlled
substance on July 1, 1983 and convicted of this offense on February 11, 1985.
On October 10, 1984, he was again arrested for possession of a narcotic
controlled substance and was convicted of the second offense on October 31,
1984. Prior to Lopez, this court held that “it is only when a person violates
§ 844(a) after a prior conviction for a controlled substance violation has become
final that the offender may be sentenced under the statute’s recidivist
sentencing enhancement provisions for a period in excess of one year, elevating
the offense to that of a felony.” Smith v. Gonzales, 468 F.3d 272, 277 (5th Cir.
2006). At the time that Roldan-Olivares committed the second possession
offense on October 10, 1984, he had not yet been convicted of the first offense.



                                          2
                                   No. 06-50316

Because Roldan-Olivares’s first possession conviction had not yet occurred --
much less become final -- at that time that he committed the second possession
offense, he could not have been sentenced under the recidivist sentencing
enhancement provision of § 844(a) for the second possession offense. See Smith,
468 F.3d at 277. Under Lopez, Roldan-Olivares’s second state conviction for
simple possession of a controlled substance was not an “aggravated felony.”
Lopez, 127 S. Ct. at 630-33; see United States v. Estrada-Mendoza, 475 F.3d at
258, 260-61 (5th Cir.), cert. denied, 127 S. Ct. 1845 (2007). Therefore, the district
court erred in enhancing Roldan-Olivares’s sentence by eight levels pursuant to
§ 2L1.2(b)(1)(C) based on his prior possession conviction. The error is clear or
obvious under the law in effect at the time of this appeal. See Salinas, 480 F.3d
at 756. Without the enhancement under § 2L1.2(b)(1)(C), his offense level would
have been 5 and his guidelines range would have been one to seven months. See
U.S.S.G. Ch. 5, Pt. A. Therefore, the error affected Roldan-Olivares’s substantial
rights. See Olano, 507 U.S. at 731-37. Because the error resulted in an increase
in Roldan-Olivares’s sentence, the error seriously affected the fairness, integrity,
or public reputation of the judicial proceedings. See id. at 735-36. Accordingly,
Roldan-Olivares’s SENTENCE is VACATED and the case is REMANDED for
resentencing in view of Lopez.




                                         3
