United States v. Ramirez-Estrada

MEMORANDUM ** Jose Angel Ramirez-Estrada appeals from the 33-month sentence imposed following his guilty-plea conviction for being a deported alien found in the United States, in violation of 8 U.S.C. § 1326 . We have jurisdiction pursuant to 28 U.S.C. § 1291 , and we vacate and remand. Ramirez-Estrada contends that the district court erred in determining that his Utah state convictions for possession of a controlled substance qualify as aggravated felony convictions for sentencing enhancement purposes. Subsequent to Ramirez-Estrada’s sentencing, the Supreme Court decided Lopez v. Gonzales, 549 U.S. 47 , 127 S.Ct. 625, 633 , 166 L.Ed.2d 462 (2006), in which holds 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 that it sentenced Ramirez-Estrada, we vacate the sentence and remand for resentencing. See United States v. Figueroa-Ocampo, 494 F.3d 1211, 1217 (9th Cir.2007) (vacating and remanding in light of Lopez). We express no opinion on the issue whether the 8-level enhancement is appropriate because Ramirez-Estrada’s possession offenses qualify as “recidivist possession” under the Controlled Substances Act. See Lopez, 127 S.Ct. at 630 n. 6. VACATED and REMANDED. This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.