United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT April 17, 2007
Charles R. Fulbruge III
Clerk
No. 06-40560
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
RODOLFO ACOSTA-ORELLANA,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. 2:05-CR-651-ALL
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Before HIGGINBOTHAM, BENAVIDES, and PRADO, Circuit Judges.
PER CURIAM:*
Rodolfo Acosta-Orellana appeals his sentence following his
guilty-plea conviction for illegal reentry after deportation, in
violation of 8 U.S.C. § 1326. Acosta-Orellana argues that the
district court erroneously characterized his state conviction for
simple possession of heroin as an aggravated felony, which
increased his offense level by eight pursuant to U.S.S.G.
§ 2L1.2(b)(1)(C). We review Acosta-Orellana’s challenge to the
district court’s application of the Sentencing Guidelines de
*
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this opinion should not be published and is not precedent except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. 06-40560
-2-
novo. See United States v. Villegas, 404 F.3d 355, 359-61 (5th
Cir. 2005).
In the light of the Supreme Court’s recent decision in Lopez
v. Gonzales, 127 S. Ct. 625 (2006), Acosta-Orellana’s argument
has merit. See United States v. Estrada-Mendoza, 475 F.3d 258,
259-61 (5th Cir. 2007). Accordingly, Acosta-Orellana’s sentence
is vacated, and the case is remanded for resentencing in light of
Lopez.
CONVICTION AFFIRMED; SENTENCE VACATED AND REMANDED FOR
RESENTENCING.