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Click here for the full text of this decision FACTS:Pablo Estrada-Mendoza (Estrada) pleaded guilty to illegal re-entry after deportation in violation of 8 U.S.C. �1326(a) and (b)(2). Estrada’s presentence investigation report (PSR) set his base offense level at eight and added eight levels for his prior Texas felony conviction for possession of a controlled substance, which the PSR characterized as an “aggravated felony” under U.S. Sentencing Guideline �2L1.2(B)(1)(C). After a three-level reduction for acceptance of responsibility, Estrada’s total offense level was 13. With a criminal history category of VI, his sentencing guidelines imprisonment range was 33 to 41 months. Estrada objected to the eight-level increase for the controlled substance offense on the ground that it should not be considered an aggravated felony for enhancement purposes because it would be considered a misdemeanor under the federal Controlled Substances Act (CSA). The district court overruled the objection and sentenced Estrada to serve 33 months in prison. HOLDING:Affirmed in part; vacated in part and remanded. The 5th Circuit applied Lopez v. Gonzales, a U.S. Supreme Court decision issued Dec. 5, 2006, to hold that the district court must resentence Estrada. In Lopez, the 5th Circuit noted, the Supreme Court analyzed whether immigration authorities may penalize an alien under the Immigration and Nationality Act (INA) for an aggravated felony when the crime was a felony under state law but would be a misdemeanor under the Controlled Substances Act. The Supreme Court’s analysis, the 5th Circuit stated, began with the provision of the INA that penalizes an alien for a prior aggravated felony if the alien had been convicted of “illicit trafficking in a controlled substance . . . including a drug trafficking crime. Under 18 U.S.C. �924(c), “the term ‘drug trafficking crime’ means any felony punishable under the Controlled Substances Act.” Mere possession of a controlled substance, the 5th Circuit stated, is not a felony under the Controlled Substances Act. As a result, the 5th Circuit stated, the Supreme Court held that the INA does not penalize an alien for mere possession of a controlled substance. The Supreme Court then reversed the 8th U.S. Circuit Court of Appeals’ judgment affirming the Board of Immigration Appeals’ order removing an immigrant found guilty of mere possession of a controlled substance. The 5th Circuit concluded that Lopez applies with equal force to immigration and criminal cases. There, the 5th Circuit vacated his sentence and remanded the matter for resentencing, because Estrada was sentenced under now-rejected jurisprudence. OPINION:Per curiam; Higginbotham, Smith and DeMoss, J.J.

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