United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
May 17, 2007
FOR THE FIFTH CIRCUIT
_____________________ Charles R. Fulbruge III
Clerk
No. 06-20067
Conference Calendar
_____________________
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
NOE MONDRAGON-JIMENEZ, also known as
Noe Jiminez Mondragon, also known as
Noe Jimenez Mondragon, also known as
Noe Mondragon,
Defendant - Appellant.
Appeal from the United States District Court
for the Southern District of Texas, Houston
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, Noe Mondragon-Jimenez (“Mondragon”). United States
v. Mondragon-Jimenez, 202 Fed.Appx. 835 (5th Cir. 2006). The
Supreme Court vacated and remanded the case for reconsideration in
*
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this opinion should not be published and is not precedent except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.
the light of Lopez v. Gonzales, 127 S.Ct. 625 (2006). Ochoa-Perez
v. United States, 127 S.Ct. 1263 (2007).**
I.
Mondragon pleaded guilty to illegal reentry after deportation
after an aggravated felony conviction, in violation of 8 U.S.C. §
1326(a), (b)(2). The presentence report (“PSR”) recommended a base
offense level of eight and an eight-level increase under U.S.S.G.
§ 2L1.2(b)(1)(C), because Mondragon had been deported after an
aggravated felony conviction. The PSR did not identify which of
Mondragon’s three Texas felony convictions -- 1994 cocaine
possession, 1996 cocaine possession, and 1998 illegal investment --
was the trigger for the increase. Prior to sentencing, Mondragon
filed a written statement of no objections to the PSR.
The district court adopted the recommendations of the PSR and
sentenced Mondragon to 30 months in prison, followed by three years
of supervised release. As a condition of supervised release, the
district court provided that Mondragon could not return to the
United States following deportation.
For the first time on direct appeal, Mondragon challenged the
eight-level increase in his offense level, arguing that the
district court misapplied the Sentencing Guidelines by
characterizing his state felony convictions for possession of a
**
Mondragon is currently in custody in federal prison, with a
projected release date of June 5, 2007. Accordingly, this appeal
is not moot. See United States v. Rosenbaum-Alanis, No. 05-41400,
2007 WL 926832 (5th Cir. March 29, 2007).
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controlled substance as aggravated felonies. This court found his
argument unavailing based on United States v. Hinojosa-Lopez, 130
F.3d 691, 693-94 (5th Cir. 1997) (holding that an aggravated felony
enhancement under § 2L1.2 was proper for a prior state felony drug
conviction even though the same conduct would constitute only a
misdemeanor under the federal Controlled Substances Act).
In Lopez, the Supreme Court held that a state offense meets
the definition of a “‘felony punishable under the Controlled
Substances Act’ only if it proscribes conduct punishable as a
felony under that federal law.” Lopez, 127 S.Ct. at 633.
Following the Supreme Court’s remand of this case, the parties
filed supplemental letter briefs addressing the effect of Lopez on
this case.
II.
Mondragon concedes that, because he did not challenge the
eight-level aggravated felony enhancement in the district court,
our review is only for plain error. To obtain relief under the
plain error standard, Mondragon must show an error that is clear or
obvious and that the error affected his substantial rights. See
United States v. Olano, 507 U.S. 725, 732-37 (1993). We will
exercise our discretion to correct a plain error if the error
seriously affects the fairness, integrity, or public reputation of
the judicial proceedings. Id.
The Government concedes that Mondragon’s Texas cocaine
possession convictions, although felonies under state law, were
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punishable only as misdemeanors under the federal Controlled
Substances Act and thus are not aggravated felonies for the
purposes of U.S.S.G. § 2L1.2(b)(1)(C). It argues, however, that
the district court did not plainly err in imposing the eight-level
increase, because Mondragon’s 1998 Texas conviction for illegal
investment, for which he was sentenced to six years in prison, is
an aggravated felony. The Government asserts that the illegal
investment conviction would actually support a 16-level increase
under the guidelines, because the sentence imposed (six years),
exceeded 13 months. See U.S.S.G. § 2L1.2(b)(1)(A)(i) (providing
for a 16-level increase for a felony drug trafficking offense for
which the sentence imposed exceeded 13 months).
Mondragon contends that the Government did not make this
argument in district court, that it is reasonable to infer that the
district court relied on the possession convictions, and not the
illegal investment conviction, for the enhancement, and that the
only evidence of the illegal investment conviction is a bare
description in the PSR. He contends that we should remand the case
for the district court to resolve the issue on a complete record.
Because we do not have the record or the PSR before us, we
decline to decide whether the eight-level enhancement was
applicable because of Mondragon’s prior Texas conviction for
illegal investment. Instead, we will leave it for the district
court to decide on remand, with a fully developed record, whether
that conviction warrants an enhancement.
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III.
For the foregoing reasons, the judgment of conviction is
AFFIRMED, Mondragon’s sentence is VACATED, and the case is REMANDED
for resentencing in accordance with Lopez.
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