UNITED STATES of America, Plaintiff-Appellee, v. Jesus RAMIREZ-ALVAREZ, Defendant-Appellant, 227 F. App'x 418

ON REMAND FROM THE SUPREME COURT OF THE UNITED STATES PER CURIAM: This court previously affirmed the conviction and sentence of Appellant, Jesus Ramirez-Alvarez. United States v. Ra mirez-Alvarez, 202 Fed.Appx. 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, — U.S.-, 127 S.Ct. 625, 166 L.Ed.2d 462 (2006). Following the Supreme Court’s remand we received supplemental 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. 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, 483 F.3d 381 (5th Cir.2007). For the foregoing reasons, we AFFIRM Ramirez’s conviction, VACATE his sentence, and REMAND for resentencing in accordance with 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R. 47.5, the Court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4. . A second basis for the eight-level enhancement was Ramirez’s prior 2002 illegal reentry 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.