                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                   June 2, 2005

                                                         Charles R. Fulbruge III
                                                                 Clerk
                           No. 04-51134
                         Summary Calendar


UNITED STATES OF AMERICA,

                                    Plaintiff-Appellee,

versus

RODOLFO VALENZUELA-AVITIA,

                                    Defendant-Appellant.

                        --------------------
           Appeal from the United States District Court
                 for the Western District of Texas
                    USDC No. 3:04-CR-1089-ALL-FM
                        --------------------

Before DAVIS, SMITH and DENNIS, Circuit Judges.

PER CURIAM:*

     Rodolfo Valenzuela-Avitia was convicted following pleading

guilty to one count of illegal reentry, in violation of 8 U.S.C.

§ 1326.   Valenzuela-Avitia has filed an unopposed motion to

remand his case for re-sentencing, stating that both “parties

agree that re-sentencing is appropriate and just” in light of the

Supreme Court’s opinion in United States v. Booker, 125 S. Ct.

738 (2005).

     Valenzuela-Avitia’s unopposed motion to remand for re-

sentencing in Booker is GRANTED, and the Government’s previously

     *
       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this opinion should not be published and is not precedent except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. 04-51134
                                -2-

filed motion for summary affirmance is DENIED.   The Government’s

request for an extension of time in which to file its brief is

DENIED AS MOOT.   We VACATE the district court’s sentence and

REMAND for re-sentencing in accordance with Booker.

     MOTION TO REMAND GRANTED; SUMMARY AFFIRMANCE DENIED; MOTION

TO EXTEND TIME FOR FILING BRIEF DENIED AS MOOT; VACATED AND

REMANDED FOR RE-SENTENCING.
