                                                                                 United States Court of Appeals
                                                                                          Fifth Circuit
                                                                                        F I L E D
                           UNITED STATES COURT OF APPEALS
                                                                                         March 9, 2007
                                    FIFTH CIRCUIT
                                                                                    Charles R. Fulbruge III
                                       _________________                                    Clerk
                                           No. 05-40946

                                       Conference Calendar
                                       _________________

UNITED STATES OF AMERICA,


                               Plaintiff-Appellee,

versus


GAUDENCIO VILLA-GUTIERREZ,


                               Defendant-Appellant.



                           Appeal from the United States District Court
                               For the Southern District of Texas
                                   USDC No. 7:04-CR-1081-1


             ON REMAND FROM THE SUPREME COURT OF THE UNITED STATES

Before GARZA, DENNIS and PRADO, Circuit Judges.

PER CURIAM:*

         This court affirmed the conviction and sentence of Gaudencio Villa-Gutierrez. See United

States v. Villa-Gutierrez, No. 05-40946 (5th Cir. Feb. 23, 2006). The Supreme Court vacated and

remanded for further consideration in light of Lopez v. Gonzalez, 127 S. Ct. 625 (2006). We


         *
         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 R. 47.5, the court has determined that this opinion should not be
published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
requested and received supplemental briefs addressing the impact of Lopez.

       In Lopez, the Supreme Court held that unless a state possession offense is punishable as a

felony under the Controlled Substances Act (“CSA”), it is not an “aggravated felony” for sentencing

purposes under 8 U.S.C. § 1101(a)(43). See Lopez, 127 S. Ct. at 631. Villa-Gutierrez argues, and

the Government concedes, that under Lopez, his prior conviction is not an “aggravated felony” for

sentencing enhancement purposes under U.S.S.G. § 2LI.2(b)(1)(c) because it was for an offense not

punishable as a felony under the CSA.1 We agree. Accordingly, we affirm Villa-Gutierrez’s

conviction, vacate his sentence, and remand the case for resentencing in light of Lopez.

       AFFIRMED IN PART, VACATED IN PART, REMANDED FOR RESENTENCING.




       1
               Villa-Gutierrez concedes that Lopez does not affect our prior decision to affirm his
conviction.

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