Case: 10-20111     Document: 00511234388          Page: 1    Date Filed: 09/15/2010




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                 FILED
                                                                        September 15, 2010
                                     No. 10-20111
                                   Summary Calendar                         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 Ayestas-
Zelaya,

                                                   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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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     Date Filed: 09/15/2010
                                    No. 10-20111

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, 

, 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, 

, 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 . . . .” 

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.




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