United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
April 17, 2007
FOR THE FIFTH CIRCUIT
_____________________ Charles R. Fulbruge III
Clerk
No. 06-20015
_____________________
UNITED STATES OF AMERICA,
Plaintiff - Appellee
versus
JOSE VICTOR TORRES, also known as
Jose Victor Torres-Valles, also known
as Jose Victor Torres-Baez, also known
as Heriberto Ochoa-Gomez, also known
as Jose Feliciano Perez-Mesa,
Defendant - Appellant.
Appeal from the United States District Court
for the Southern District of Texas, Houston
USDC No. 4:05-CR-127-ALL
ON REMAND FROM THE SUPREME COURT OF THE UNITED STATES
Before JOLLY, DeMOSS, and STEWART, Circuit Judges.
PER CURIAM:*
This court previously affirmed the conviction and sentence of
the Appellant, Jose Victor Torres (“Torres”). United States v.
Torres, 202 Fed. Appx. 833 (5th Cir. 2006). The Supreme Court
vacated and remanded the case for reconsideration in the light of
Lopez v. Gonzalez, 127 S.Ct. 625 (2006). Ochoa-Perez v. United
*
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this opinion should not be published and is not precedent except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.
States, 127 S.Ct. 1263 (2007). Following the Supreme Court’s
remand, we requested and received supplemental letter briefs from
both parties with respect to the impact of Lopez.
The Government concedes, and we agree that, in the light of
Lopez, the district court erred by enhancing Torres’s sentence on
the basis of his Texas convictions for possession of
methamphetamine and for possession of heroin. Torres remains in
custody in federal prison, with a projected release date of June 4,
2007. Accordingly, the appeal is not moot. See United States v.
Rosenbaum-Alanis, No. 05-41400, 2007 WL 926832 (5th Cir. March 29,
2007).
For the foregoing reasons, we AFFIRM Torres’s conviction,
VACATE his sentence, and REMAND for resentencing in accordance with
Lopez.
2