UNITED STATES of America, Plaintiff-Appellee, v. Magdaleno REYES-BAUTISTA, Defendant-Appellant, 220 F. App'x 279

ON REMAND FROM THE SUPREME COURT OF THE UNITED STATES PER CURIAM: In our previous opinion in this case, we affirmed Defendant-Appellant Reyes-Bautista’s conviction but vacated his sentence and remanded his case for resentencing consistent with United States v. Booker and United States v. Fanfan. Although we vacated Reyes-Bautista’s sentence, we rejected his argument that the district court mischaracterized his state felony conviction for possession of a controlled substance as an “aggravated felony” for purposes of U.S.S.G. § 2L1.2(b)(l)(C). After Lopez v.

Gonzales was decided, the Supreme Court vacated our judgment and remanded this case for reconsideration in light of Lopez. Upon reconsideration and in light of Lopez, we conclude that, in addition to the Fanfan error, the district court erred by characterizing Reyes-Bautista’s state felony as an “aggravated felony” and enhancing his sentence under U.S.S.G. § 2L1.2(b)(l)(C). The conviction is AFFIRMED, but we VACATE Reyes-Bautista’s sentence and REMAND the case for resentencing consistent with our opinion on February 21, 2006 and the Supreme Court’s decision in Lopez. 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R. 47.5, the Court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4. . - U.S. -, 127 S.Ct. 625, 166 L.Ed.2d 462 (2006) . See United States v. Estrada-Mendoza, 475 F.3d 258 (5th Cir.2007). . See United States v. Reyes-Bautista, 167 Fed.Appx. 996, 997 (5th Cir.2006) (unpublished) (per curiam). . Id.