United States of America v. Alan Mejia-Aguirre, also known as Allan Bladimir Mejia

* 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this opinion should not be published and is not precedent except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.
United States Court of Appeals
Fifth Circuit
F I L E D
February 13, 2007
Charles R. Fulbruge III
Clerk
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 06-30937
UNITED STATES OF AMERICA
Plaintiff - Appellee
v.
ALAN MEJIA-AGUIRRE, also known as Allan Bladimir Mejia
Defendant - Appellant
Appeal from the United States District Court
for the Eastern District of Louisiana, New Orleans
No. 2:06-CR-91
Before KING, WIENER, and OWEN, Circuit Judges.
PER CURIAM:*
Defendant-appellant Alan Mejia-Aguirre (“Mejia”) pleaded
guilty to one count of reentry of a deported alien previously
convicted of an aggravated felony in violation of 8 U.S.C.
§ 1326(a) and (b)(2). At sentencing, the district court imposed,
over Mejia’s objection, an eight-level enhancement under United
States Sentencing Guidelines (“Guidelines” or “U.S.S.G.”)
§ 2L1.2(b)(1)(C) for a previous aggravated-felony conviction.
The court calculated Mejia’s Guidelines total offense level as 13

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and his criminal-history category as II, yielding a sentencing
range of 15 to 21 months’ imprisonment, and it sentenced Mejia to
15 months’ imprisonment. Mejia appeals his sentence.
Mejia’s sole argument on appeal is that the eight-level
enhancement for an aggravated-felony conviction was erroneous
under Lopez v. Gonzales, 127 S. Ct. 625 (2006). Mejia’s prior
felony conviction was for the Texas offense of possession of less
than one gram of cocaine. The government concedes that Mejia’s
prior conviction was not an aggravated felony under 8 U.S.C.
§ 1326(b)(2) and U.S.S.G. § 2L1.2(b)(1)(C); that is, it was not
“illicit trafficking in a controlled substance . . . , including
a drug trafficking crime (as defined in section 924(c) of Title
18),” 8 U.S.C. § 1101(a)(43)(B), since possession of less than
one gram of cocaine is not a “felony punishable under the
Controlled Substances Act,” 18 U.S.C. § 924(c)(2). The
government also concedes that Mejia’s sentence should be vacated.
We agree.
Accordingly, Mejia’s sentence is VACATED and the case
REMANDED for resentencing in light of Lopez.

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