United States of America v. Magdaleno Reyes-Bautista

*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this opinion should not be published and is not precedent except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.
1
United States Court of Appeals
Fifth Circuit
F I L E D
February 26, 2007
Charles R. Fulbruge III
Clerk
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_____________________
No. 05-40022
____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
MAGDALENO REYES-BAUTISTA,
Defendant-Appellant.
__________________
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 5:04-CR-1494-ALL
__________________
ON REMAND FROM THE SUPREME COURT OF THE UNITED STATES
Before JOLLY, DAVIS, and OWEN, Circuit Judges.
PER CURIAM:*
In our previous opinion in this case, we affirmed Defendant-
Appellant Reyes-Bautista’s conviction but vacated his sentence
and remanded his case for resentencing consistent with United

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1See United States v. Reyes-Bautista, 167 F. App'x 996, 997
(5th Cir. 2006) (unpublished) (per curiam).
2Id.
3127 S.Ct. 625 (2006)
4See United States v. Estrada-Mendoza, 475 F.3d 258 (5th
Cir. 2007).
2
States v. Booker and United States v. Fanfan.1 Although we
vacated Reyes-Bautista’s sentence, we rejected his argument that
the district court mischaracterized his state felony conviction
for possession of a controlled substance as an “aggravated
felony” for purposes of U.S.S.G. § 2L1.2(b)(1)(C).2
After Lopez v. Gonzalez3 was decided, the Supreme Court
vacated our judgment and remanded this case for reconsideration
in light of Lopez. Upon reconsideration and in light of Lopez,
we conclude that, in addition to the Fanfan error, the district
court erred by characterizing Reyes-Bautista’s state felony as an
“aggravated felony” and enhancing his sentence under U.S.S.G. §
2L1.2(b)(1)(C).4
The conviction is AFFIRMED, but we VACATE Reyes-Bautista’s
sentence and REMAND the case for resentencing consistent with our
opinion on February 21, 2006 and the Supreme Court’s decision in
Lopez.

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