                                                         United States Court of Appeals
                                                                  Fifth Circuit
                                                               F I L E D
                 IN THE UNITED STATES COURT OF APPEALS
                                                              February 26, 2007
                         FOR THE FIFTH CIRCUIT
                                                           Charles R. Fulbruge III
                         _____________________                     Clerk
                             No. 05-40022
                         ____________________

                       UNITED STATES OF AMERICA,

                                       Plaintiff-Appellee,

                                  v.

                       MAGDALENO REYES-BAUTISTA,

                                       Defendant-Appellant.

                          __________________

             Appeal from the United States District Court
                  for the Southern District of Texas
                       USDC No. 5:04-CR-1494-ALL
                           __________________

         ON REMAND FROM THE SUPREME COURT OF THE UNITED STATES

Before JOLLY, DAVIS, and OWEN, Circuit Judges.

PER CURIAM:*

     In our previous opinion in this case, we affirmed Defendant-

Appellant Reyes-Bautista’s conviction but vacated his sentence

and remanded his case for resentencing consistent with United




     *
      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this opinion should not be published and is not precedent except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.


                                   1
States v. Booker and United States v. Fanfan.1                           Although we

vacated Reyes-Bautista’s sentence, we rejected his argument that

the district court mischaracterized his state felony conviction

for   possession      of    a    controlled       substance   as    an   “aggravated

felony” for purposes of U.S.S.G. § 2L1.2(b)(1)(C).2

      After   Lopez    v.       Gonzalez3   was    decided,   the    Supreme   Court

vacated our judgment and remanded this case for reconsideration

in light of Lopez.          Upon reconsideration and in light of Lopez,

we conclude that, in addition to the Fanfan error, the district

court erred by characterizing Reyes-Bautista’s state felony as an

“aggravated felony” and enhancing his sentence under U.S.S.G. §

2L1.2(b)(1)(C).4

      The conviction is AFFIRMED, but we VACATE Reyes-Bautista’s

sentence and REMAND the case for resentencing consistent with our

opinion on February 21, 2006 and the Supreme Court’s decision in

Lopez.




      1
      See United States v. Reyes-Bautista, 167 F. App'x 996, 997
(5th Cir. 2006) (unpublished) (per curiam).
      2
       Id.
      3
       127 S.Ct. 625 (2006)
      4
      See United States v. Estrada-Mendoza, 475 F.3d 258 (5th
Cir. 2007).


                                            2
