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

                                                                   FILED
                                                                 February 28, 2008
                                No. 06-41106
                              Summary Calendar               Charles R. Fulbruge III
                                                                     Clerk

UNITED STATES OF AMERICA

                                            Plaintiff-Appellee

v.

HECTOR IVAN BAUTISTA-GONZALEZ

                                            Defendant-Appellant


                 Appeal from the United States District Court
                      for the Southern District of Texas
                         USDC No. 2:06-CR-172-ALL


Before HIGGINBOTHAM, STEWART, and OWEN, Circuit Judges.
PER CURIAM:*
      Hector Ivan Bautista-Gonzalez appeals the 24-month sentence he received
following his guilty plea conviction for illegal reentry, in violation of 8 U.S.C.
§ 1326. Bautista-Gonzalez contends that the district court misapplied the
Sentencing Guidelines by characterizing his prior Texas state felony drug
conviction for possession of a controlled substance as an “aggravated felony” for
purposes of U.S.S.G. § 2L1.2(b)(1)(C). Given the Supreme Court’s decision 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should not be published and is not precedent except under the limited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.
                                 No. 06-41106

Lopez v. Gonzales, 127 S. Ct. 625 (2006), Bautista-Gonzalez is correct that his
prior conviction is not an aggravated felony.             See United States v.
Estrada-Mendoza, 475 F.3d 258, 259-61 (5th Cir. 2007).
      The Government concedes that the district court erred in characterizing
the state offense as an aggravated felony and in imposing an eight-level increase
pursuant to § 2L1.2(b)(1)(C), but contends that the error was harmless. The
Government has failed to meet its burden of showing that the error was
harmless. See FED. R. CRIM. P. 52(a); United States v. Pineiro, 410 F.3d 282, 286
(5th Cir. 2005); United States v. Mares, 402 F.3d 511, 520 n.9 (5th Cir. 2005).
      We    VACATE      Bautista-Gonzalez’s    sentence    and   REMAND       for
resentencing.




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