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Published opinion

Before JOLLY and GARZA, Circuit Judges, and STARRETT,*fn1 District Judge.

Nelson Arceny Carales-Villalta (Carales) appeals the 37-month sentence imposed on remand for resentencing following his initial appeal from his guilty plea conviction and original sentence for illegal reentry, in violation of 8 U.S.C. § 1326. Specifically, he challenges the eight-level aggravated felony enhancement assessed by the district court under U.S.S.G. § 2L1.2(b)(1)(C) based on his 1999 Texas conviction for delivery of cocaine,*fn2 on the grounds that it violates the law-of-the-case doctrine and the mandate rule. Carales urges that the district court was limited on remand to consideration of a four-level “any other felony” increase under § 2L1.2(b)(1)(D) only. He contends that the Government is bound by its concession on initial appeal that the eight-level increase was error due to insufficient evidence at the original sentencing demonstrating that the 1999 conviction for delivery of a controlled substance involved actual possession instead of a mere offer to sell cocaine. See United States v. Fuentes, 245 F. App’x 358, 359-360 (5th Cir.) (finding guilty plea and conjunctive charging document insufficient evidence of actual or constructive transfer of drugs), cert. denied, 552 U.S. 964 (2007). Carales further argues that the district court erred in considering new evidence in the form of his judicial confession on remand, both because the judicial confession had been available at the time of the original sentencing and because it was inconsistent on its face and therefore inherently unreliable to support the enhancement.

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