UNITED STATES of America, Plaintiff-Appellee v. Moris JIMENEZ-RIVAS, Defendant-Appellant, 389 F. App'x 440

PER CURIAM: Appealing the judgment in a criminal case, Moris Jimenez-Rivas presents arguments that he initially conceded were foreclosed by United States v. Cepeda-Rios, 530 F.3d 333, 335-36 (5th Cir.2008), which held that even after Lopez v. Gonzales, 549 U.S. 47, 127 S.Ct. 625, 166 L.Ed.2d 462 (2006), a second state conviction for simple possession of a controlled substance qualifies as an aggravated felony that supports the imposition of an eight-level enhancement under U.S.S.G. § 2L1.2(b)(l)(C). Because the arguments were foreclosed, the Government moved for a

summary affirmance, or in the alternative, to suspend the appeal. Subsequent to the Government’s motion, the Supreme Court held in an immigration proceeding that “when a defendant has been convicted of a simple possession offense that has not been enhanced based on the fact of a prior conviction, he has not been ‘convicted’ under [8 U.S.C.] § 1229b(a)(3) of a ‘felony punishable’ as such ‘under the Controlled Substances Act.’ ” Carachuri-Rosendo v. Holder, — U.S. -, 130 S.Ct. 2577, 2589, 177 L.Ed.2d 68 (2010) (No. 09-60).

The Supreme Court noted that “[t]he mere possibility that the defendant’s conduct, coupled with facts outside of the record of conviction, could have authorized a felony conviction under federal law is insufficient....” Id. Jimenez-Rivas now moves, without opposition, to vacate and remand for resen-tencing. IT IS ORDERED that, in light of Carachuri-Rosendo, Jimenez-Rivas’s motion to vacate his sentence and to remand his case to the district court for resentencing is GRANTED. The motion to issue the mandate forthwith is also GRANTED. As the Government has not opposed the motion to vacate, its prior motions for

summary affirmance and to suspend the appeal are DENIED. Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4.