USA vs. Balderas-Sanchez, (5th Cir. 2003)

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* Pursuant to 5 T H C IR . R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5 TH C IR . R. 47.5.4. IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 02-50131 Summary Calendar UNITED STATES OF AMERICA, Plaintiff-Appellant, versus FACUNDO BALDERAS-SANCHEZ, Defendant-Appellee. Appeal from the United States District Court for the Western District of Texas (DR-01-CR-402-1) January 8, 2003 Before DAVIS, WIENER, and EMILIO M. GARZA, Circuit Judges.

PER CURIAM: * The government appeals from the se ntence imposed on Facundo Balderas-Sanchez for his guilty-plea conviction for illegal reentry into the United States afte r deportation. Specifically, the government challenges the district court§ 2L1.2(b)(1)(C) because it did not constitute an “aggravated felony.” This issue is reviewed d e novo . S ee United States v. Hinojosa-Lopez , 130 F.3d 691, 693 (5th Cir. 1997).

The government§ 2L1.2(b)(1 )(C) for the defendantÂ’s prior Texas conviction for simple possession of marijuana. 2002 WL 31521599, at *7-11. In doing so, we referenced the district courtÂ’s holding in the instant case and expressly disagreed with it. Id. at *8.

Accordingly, Balderas-SanchezÂ’s sentence is VACATED and the case is REMANDED for resentencing in conformity with our holding in Caicedo-Cuero .

SENTENCE VACATED; REMANDED for resentencing.

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