                                                           United States Court of Appeals
                                                                    Fifth Circuit
                                                                 F I L E D
                  IN THE UNITED STATES COURT OF APPEALS
                                                                   May 17, 2007
                          FOR THE FIFTH CIRCUIT
                          _____________________              Charles R. Fulbruge III
                                                                     Clerk
                               No. 06-20067
                           Conference Calendar
                          _____________________


UNITED STATES OF AMERICA,

                                                  Plaintiff - Appellee,

                                 versus

NOE   MONDRAGON-JIMENEZ, also known as
Noe   Jiminez Mondragon, also known as
Noe   Jimenez Mondragon, also known as
Noe   Mondragon,

                                                  Defendant - Appellant.


              Appeal from the United States District Court
               for the Southern District of Texas, Houston


          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

the Appellant, Noe Mondragon-Jimenez (“Mondragon”).        United States

v. Mondragon-Jimenez, 202 Fed.Appx. 835 (5th Cir. 2006).                 The

Supreme Court vacated and remanded the case for reconsideration in




      *
      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this opinion should not be published and is not precedent except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.
the light of Lopez v. Gonzales, 127 S.Ct. 625 (2006).             Ochoa-Perez

v. United States, 127 S.Ct. 1263 (2007).**

                                     I.

     Mondragon pleaded guilty to illegal reentry after deportation

after an aggravated felony conviction, in violation of 8 U.S.C. §

1326(a), (b)(2). The presentence report (“PSR”) recommended a base

offense level of eight and an eight-level increase under U.S.S.G.

§ 2L1.2(b)(1)(C), because Mondragon had been deported after an

aggravated felony conviction.        The PSR did not identify which of

Mondragon’s   three    Texas   felony      convictions    --    1994    cocaine

possession, 1996 cocaine possession, and 1998 illegal investment --

was the trigger for the increase.          Prior to sentencing, Mondragon

filed a written statement of no objections to the PSR.

     The district court adopted the recommendations of the PSR and

sentenced Mondragon to 30 months in prison, followed by three years

of supervised release.     As a condition of supervised release, the

district court provided that Mondragon could not return to the

United States following deportation.

     For the first time on direct appeal, Mondragon challenged the

eight-level   increase   in    his   offense   level,     arguing      that   the

district   court      misapplied     the     Sentencing        Guidelines      by

characterizing his state felony convictions for possession of a

     **
      Mondragon is currently in custody in federal prison, with a
projected release date of June 5, 2007. Accordingly, this appeal
is not moot. See United States v. Rosenbaum-Alanis, No. 05-41400,
2007 WL 926832 (5th Cir. March 29, 2007).

                                      2
controlled substance as aggravated felonies.        This court found his

argument unavailing based on United States v. Hinojosa-Lopez, 130

F.3d 691, 693-94 (5th Cir. 1997) (holding that an aggravated felony

enhancement under § 2L1.2 was proper for a prior state felony drug

conviction even though the same conduct would constitute only a

misdemeanor under the federal Controlled Substances Act).

     In Lopez, the Supreme Court held that a state offense meets

the definition of a “‘felony punishable under the Controlled

Substances Act’ only if it proscribes conduct punishable as a

felony under that federal law.”         Lopez, 127 S.Ct. at 633.

     Following the Supreme Court’s remand of this case, the parties

filed supplemental letter briefs addressing the effect of Lopez on

this case.

                                   II.

     Mondragon concedes that, because he did not challenge the

eight-level aggravated felony enhancement in the district court,

our review is only for plain error.          To obtain relief under the

plain error standard, Mondragon must show an error that is clear or

obvious and that the error affected his substantial rights.            See

United States v. Olano, 507 U.S. 725, 732-37 (1993).               We will

exercise our discretion to correct a plain error if the error

seriously affects the fairness, integrity, or public reputation of

the judicial proceedings.    Id.

     The   Government   concedes    that     Mondragon’s   Texas   cocaine

possession convictions, although felonies under state law, were

                                    3
punishable     only    as   misdemeanors       under   the   federal   Controlled

Substances     Act    and   thus   are   not    aggravated    felonies   for   the

purposes of U.S.S.G. § 2L1.2(b)(1)(C).                 It argues, however, that

the district court did not plainly err in imposing the eight-level

increase, because Mondragon’s 1998 Texas conviction for illegal

investment, for which he was sentenced to six years in prison, is

an aggravated felony.            The Government asserts that the illegal

investment conviction would actually support a 16-level increase

under the guidelines, because the sentence imposed (six years),

exceeded 13 months.          See U.S.S.G. § 2L1.2(b)(1)(A)(i) (providing

for a 16-level increase for a felony drug trafficking offense for

which the sentence imposed exceeded 13 months).

     Mondragon contends that the Government did not make this

argument in district court, that it is reasonable to infer that the

district court relied on the possession convictions, and not the

illegal investment conviction, for the enhancement, and that the

only evidence of the illegal investment conviction is a bare

description in the PSR.          He contends that we should remand the case

for the district court to resolve the issue on a complete record.

     Because we do not have the record or the PSR before us, we

decline   to    decide       whether     the   eight-level       enhancement   was

applicable     because      of   Mondragon’s     prior   Texas    conviction   for

illegal investment.          Instead, we will leave it for the district

court to decide on remand, with a fully developed record, whether

that conviction warrants an enhancement.

                                          4
                               III.

     For the foregoing reasons, the judgment of conviction is

AFFIRMED, Mondragon’s sentence is VACATED, and the case is REMANDED

for resentencing in accordance with Lopez.




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