United States v. Hernandez-Valenzuela

MEMORANDUM ** Salvador Hernandez-Valenzuela appeals from his 27-month sentence imposed following a guilty plea to illegal reentry after deportation, in violation of 8 U.S.C. § 1325 . We have jurisdiction pursuant to 28 U.S.C. § 1291 , and we vacate and remand. Hernandez-Valenzuela contends that the district court erred in applying an eight-level enhancement based on its determination that Hernandez-Valenzuela’s prior Texas state conviction for possession of marijuana was an aggravated felony for purposes of U.S.S.G. § 2L1.2(b)(1)(C). Subsequent to Hernandez-Valenzuela’s sentencing, the Supreme Court decided Lopez v. Gonzales, — U.S.-, 127 S.Ct. 625, 633 , 166 L.Ed.2d 462 (2006), in which it held that “a state offense constitutes a ‘felony punishable under the Controlled Substances Act’ only if it proscribes conduct punishable as a felony under that federal law.” Because the district court did not have the benefit of the Supreme Court’s decision in Lopez at the time it sentenced Hernandez-Valenzuela, we vacate the sentence and remand for resentencing in accordance with Lopez . *687 All pending motions are denied. The mandate shall issue forthwith. VACATED and REMANDED. This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.