United States Court of Appeals
Fifth Circuit
F I L E D
UNITED STATES COURT OF APPEALS
March 9, 2007
FIFTH CIRCUIT
Charles R. Fulbruge III
_________________ Clerk
No. 05-40946
Conference Calendar
_________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
GAUDENCIO VILLA-GUTIERREZ,
Defendant-Appellant.
Appeal from the United States District Court
For the Southern District of Texas
USDC No. 7:04-CR-1081-1
ON REMAND FROM THE SUPREME COURT OF THE UNITED STATES
Before GARZA, DENNIS and PRADO, Circuit Judges.
PER CURIAM:*
This court affirmed the conviction and sentence of Gaudencio Villa-Gutierrez. See United
States v. Villa-Gutierrez, No. 05-40946 (5th Cir. Feb. 23, 2006). The Supreme Court vacated and
remanded for further consideration in light of Lopez v. Gonzalez, 127 S. Ct. 625 (2006). We
*
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 R. 47.5, the court has determined that this opinion should not be
published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
requested and received supplemental briefs addressing the impact of Lopez.
In Lopez, the Supreme Court held that unless a state possession offense is punishable as a
felony under the Controlled Substances Act (“CSA”), it is not an “aggravated felony” for sentencing
purposes under 8 U.S.C. § 1101(a)(43). See Lopez, 127 S. Ct. at 631. Villa-Gutierrez argues, and
the Government concedes, that under Lopez, his prior conviction is not an “aggravated felony” for
sentencing enhancement purposes under U.S.S.G. § 2LI.2(b)(1)(c) because it was for an offense not
punishable as a felony under the CSA.1 We agree. Accordingly, we affirm Villa-Gutierrez’s
conviction, vacate his sentence, and remand the case for resentencing in light of Lopez.
AFFIRMED IN PART, VACATED IN PART, REMANDED FOR RESENTENCING.
1
Villa-Gutierrez concedes that Lopez does not affect our prior decision to affirm his
conviction.
-2-