     Case: 10-40052     Document: 00511200660          Page: 1    Date Filed: 08/11/2010




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

                                                 FILED
                                                                           August 11, 2010
                                     No. 10-40052
                                   Summary Calendar                         Lyle W. Cayce
                                                                                 Clerk

UNITED STATES OF AMERICA,

                                                   Plaintiff-Appellee

v.

MORIS JIMENEZ-RIVAS,

                                                   Defendant-Appellant


                    Appeal from the United States District Court
                         for the Southern District of Texas
                              USDC No. 2:09-CR-789-1


Before KING, BENAVIDES, and ELROD, Circuit Judges.
PER CURIAM:*
        Appealing the judgment in a criminal case, Moris Jimenez-Rivas 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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: 10-40052    Document: 00511200660 Page: 2          Date Filed: 08/11/2010
                                 No. 10-40052

§ 2L1.2(b)(1)(C).   Because the arguments were foreclosed, the Government
moved for a summary affirmance, or in the alternative, to suspend the appeal.
      Subsequent to the Government’s motion, 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.
      Jimenez-Rivas now moves, without opposition, to vacate and remand for
resentencing. IT IS ORDERED that, in light of Carachuri-Rosendo, Jimenez-
Rivas’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. As the Government has not opposed the motion to vacate, its
prior motions for summary affirmance and to suspend the appeal are DENIED.




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