United States Court of Appeals
Fifth Circuit
F I L E D
UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT May 15, 2007
Charles R. Fulbruge III
Clerk
No. 06-40115
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
VERSUS
JESUS RAMIREZ-ALVAREZ,
Defendant-Appellant.
Appeal from the United States District Court
for the Southern District of Texas
(05-CR-686)
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
Appellant, Jesus Ramirez-Alvarez. United States v. Ramirez-Alvarez,
202 F. App’x 828 (5th Cir. 2006). On March 30, 2007, the Supreme
Court vacated our judgment in this case and remanded the case to
this court for further consideration in light of Lopez v. Gonzales,
127 S.Ct. 625 (2006).
Following the Supreme Court’s remand we received supplemental
*
Pursuant to 5th Cir. R. 47.5, the Court has determined that this opinion should not be published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.
letter briefs from both parties with respect to the impact of
Lopez. The government concedes and we agree that, under Lopez, the
district court erred in imposing an eight-level enhancement for
Appellant’s prior Texas controlled substance conviction.2 Ramirez
remains in custody in federal prison, with a projected release date
of March 8, 2008. Accordingly, the appeal is not moot. See United
States v. Rosenbaum-Alanis, __ F.3d __, No. 05-41400, 2007 WL
926832 (5th Cir. Mar. 29, 2007).
For the foregoing reasons, we AFFIRM Ramirez’s conviction,
VACATE his sentence, and REMAND for resentencing in accordance with
Lopez.
2
A second basis for the eight-level enhancement was Ramirez’s prior 2002 illegal re-entry
conviction, which itself can qualify as an aggravated felony if the alien was previously deported on the
basis of a separate aggravated felony. See 8 U.S.C. § 1101(a)(43)(O). However, the parties agree that
the illegal re-entry conviction is not an aggravated felony here, because it merely followed the Texas
controlled substance conviction, which is not an aggravated felony under Lopez.