Hernandez-Valenzuela

United States v. Hernandez-Valenzuela

Good Law
227 F. App'x 686
United States Court of Appeals for the Ninth CircuitApril 18, 2007No. 05-50715California198 words

Opinion

Lead Opinion

MEMORANDUM **

Salvador Hernandez-Valenzuela appeals from his 27-month sentence imposed following a guilty plea to illegal reentry after deportation, in violation of 8 U.S.C. § 1325 . We have jurisdiction pursuant to 28 U.S.C. § 1291 , and we vacate and remand.

Hernandez-Valenzuela contends that the district court erred in applying an eight-level enhancement based on its determination that Hernandez-Valenzuela’s prior Texas state conviction for possession of marijuana was an aggravated felony for purposes of U.S.S.G. § 2L1.2(b)(1)(C). Subsequent to Hernandez-Valenzuela’s sentencing, the Supreme Court decided Lopez v. Gonzales, — U.S.-, 127 S.Ct. 625, 633 , 166 L.Ed.2d 462 (2006), in which it held that “a state offense constitutes a ‘felony punishable under the Controlled Substances Act’ only if it proscribes conduct punishable as a felony under that federal law.” Because the district court did not have the benefit of the Supreme Court’s decision in Lopez at the time it sentenced Hernandez-Valenzuela, we vacate the sentence and remand for resentencing in accordance with Lopez .

*687 All pending motions are denied.

The mandate shall issue forthwith.

VACATED and REMANDED.

This…

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