     Case: 09-40559     Document: 00511173655          Page: 1    Date Filed: 07/14/2010




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

                                                 FILED
                                                                            July 14, 2010
                                     No. 09-40559
                                  Conference Calendar                       Lyle W. Cayce
                                                                                 Clerk

UNITED STATES OF AMERICA,

                                                   Plaintiff-Appellee

v.

JOSE ALFREDO MENDOZA-DELGADO,

                                                   Defendant-Appellant


                    Appeal from the United States District Court
                         for the Southern District of Texas
                              USDC No. 2:09-CR-15-1


 ON REMAND FROM THE SUPREME COURT OF THE UNITED STATES
Before KING, JOLLY, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
        Jose Alfredo Mendoza-Delgado (Mendoza) pleaded guilty to being found
unlawfully in the United States following deportation and conviction of an
aggravated felony and was sentenced to a 24-month term of imprisonment.
Mendoza appealed his sentence, arguing that his second drug possession offense
should not have been considered an aggravated felony for purposes of U.S.S.G.
§ 2L1.2(b)(1)(C) because the Government did not establish that the offense was

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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: 09-40559   Document: 00511173655 Page: 2        Date Filed: 07/14/2010
                                No. 09-40559

prosecuted under state recidivism laws providing Mendoza with notice and
procedural protections commensurate with those prescribed by 21 U.S.C. § 851.
We affirmed the judgment of the district court, relying on our decision in United
States v. Cepeda-Rios, 530 F.3d 333, 335-36 (5th Cir. 2008). United States v.
Mendoza-Delgado, No. 09-40559 (5th Cir. Dec. 15, 2009).
      After Mendoza petitioned for a writ of certiorari, the Supreme Court
vacated our decision and remanded the case for consideration in light of
Carachuri-Rosendo v. Holder, __ S. Ct. __, 2010 WL 2346552 (June 14, 2010)
(No. 09-60). Mendoza-Delgado v. United States, No. 09-8474, slip op. (June 21,
2010). The Court in Carachuri-Rosendo held 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,’ 18 U.S.C. § 924(c)(2).” 2010 WL 2346552, at *11. In accordance with the
Supreme Court’s ruling in Carachuri-Rosendo, we VACATE the sentence and
REMAND for resentencing.




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