United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT July 18, 2005
Charles R. Fulbruge III
Clerk
No. 04-11464
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JUAN CARLOS ROCHA-AGUILAR, also known as
Juan Carlos Rocha Aguilar,
Defendant-Appellant.
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Appeal from the United States District Court
for the Northern District of Texas
USDC No. 4:04-CR-109-ALL
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Before HIGGINBOTHAM, BARKSDALE and PRADO, Circuit Judges.
PER CURIAM:*
Juan Carlos Rocha-Aguilar (Rocha) was convicted following
pleading guilty to one count of illegal reentry following
deportation, in violation of 8 U.S.C. § 1326. Rocha argues that
the district court erred in denying his motion to dismiss the
indictment on the basis that his prior deportation was invalid
and in characterizing his prior state felony conviction for
simply possession of cocaine as an “aggravated felony” for
sentencing purposes. He concedes, however, that these issues are
*
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this opinion should not be published and is not precedent except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. 04-11464
-2-
foreclosed. See United States v. Hernandez-Avalos, 251 F.3d 505,
509 (5th Cir. 2001); United States v. Hinojosa-Lopez, 130 F.3d
691, 693-94 (5th Cir. 1997).
Rocha also argues that the district court erred by imposing
a sentencing under a mandatory federal sentencing guideline
scheme, which was held to be unconstitutional in United States v.
Booker, 125 S. Ct. 738 (2005). The Government concedes that
Rocha preserved the issue in the district court, that the
district court committed error, and that the error was not
harmless. In light of the foregoing, the Government’s unopposed
motion for summary affirmance of the conviction and to vacate the
sentence and remand for resentencing is GRANTED. Rocha’s
conviction is AFFIRMED, but we VACATE the district court’s
sentence and REMAND for resentencing in accordance with Booker.
MOTION GRANTED; CONVICTION AFFIRMED; VACATED AND REMANDED
FOR RESENTENCING.