     Case: 09-41215     Document: 00511198457          Page: 1    Date Filed: 08/09/2010




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

                                                 FILED
                                                                           August 9, 2010
                                     No. 09-41215
                                   Summary Calendar                         Lyle W. Cayce
                                                                                 Clerk

UNITED STATES OF AMERICA,

                                                   Plaintiff-Appellee

v.

MELVIN VICENTE REYES-SALGADO,

                                                   Defendant-Appellant


                    Appeal from the United States District Court
                         for the Southern District of Texas
                              USDC No. 1:09-CR-888-1


Before WIENER, PRADO, and OWEN, Circuit Judges.
PER CURIAM:*
        Appealing the judgment in a criminal case, Melvin Vicente Reyes-Salgado
(Reyes) presents arguments that he initially conceded were foreclosed by United
States v. Cepeda-Rios, 530 F.3d 333, 335-36 (5th Cir. 2008), which held that even
after Lopez v. Gonzales, 549 U.S. 47 (2006), a second state conviction for simple
possession of a controlled substance qualifies as an aggravated felony that
supports the imposition of an eight-level enhancement under U.S.S.G.



       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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: 09-41215    Document: 00511198457 Page: 2          Date Filed: 08/09/2010
                                 No. 09-41215

§ 2L1.2(b)(1)(C). Because the arguments were foreclosed, he sought summary
disposition to enable him to seek further review.
      After the summary-disposition motion was filed, the Supreme Court held
in an immigration proceeding that “when a defendant has been convicted of a
simple possession offense that has not been enhanced based on the fact of a prior
conviction, he has not been ‘convicted’ under [8 U.S.C.] § 1229b(a)(3) of a ‘felony
punishable’ as such ‘under the Controlled Substances Act.’” Carachuri-Rosendo
v. Holder, 2010 WL 2346552 at *11 (June 14, 2010) (No. 09-60). The Supreme
Court noted that “[t]he mere possibility that the defendant’s conduct, coupled
with facts outside of the record of conviction, could have authorized a felony
conviction under federal law is insufficient . . . .” Id.
      Reyes now moves, without opposition, to vacate and remand for
resentencing. IT IS ORDERED that, in light of Carachuri-Rosendo, Reyes’s
motion to vacate his sentence and to remand his case to the district court for
resentencing is GRANTED. The motion to issue the mandate forthwith is also
GRANTED. The motion for summary disposition is DENIED.




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