USA v. Edilberto Zelaya, No. 10-20111 (5th Cir. 2010)
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Case: 10-20111 Document: 00511234388 Page: 1 Date Filed: 09/15/2010 IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED No. 10-20111 Summary Calendar September 15, 2010 Lyle W. Cayce Clerk UNITED STATES OF AMERICA, Plaintiff - Appellee v. EDILBERTO AYESTAS ZELAYA, also known as Ediberto Isae Ayestas, also known as Edilberto Isae Ayestas Zelaya, also known as Edilberto Ayesta, also known as Edilberto Isae Ayestas-Zelaya, also known as Edilberto AyestasZelaya, Defendant - Appellant Appeal from the United States District Court for the Southern District of Texas USDC No. 4:09-CR-268-1 Before DAVIS, SMITH, and SOUTHWICK, Circuit Judges. PER CURIAM:* Edilberto Ayestas Zelaya pled guilty to illegal reentry following deportation after conviction of an aggravated felony, in violation of 8 U.S.C. §§ 1326(a), (b)(1), and was sentenced to twenty-three months in prison. Ayestas Zelaya appeals his sentence, arguing that the district court erred when it increased his offense level by eight levels pursuant to U.S.S.G. § 2L1.2(b)(1)(C). * 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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. Case: 10-20111 Document: 00511234388 Page: 2 No. 10-20111 Date Filed: 09/15/2010 Ayestas Zelaya argues his second state conviction for simple possession did not constitute an aggravated felony but concedes that his argument is foreclosed by United States v. Cepeda-Rios, 530 F.3d 333, 335-36 (5th Cir. 2008). After Ayestas Zelaya filed his brief, however, 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, 130 S. Ct. 2577, 2589 (2010). 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. Ayestas Zelaya now moves, without opposition, to vacate and remand for resentencing. IT IS ORDERED that, in light of Carachuri-Rosendo, Ayestas Zelaya 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. 2
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