Case: 08-41337     Document: 00511170368          Page: 1    Date Filed: 07/12/2010




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

                                                 FILED
                                                                            July 12, 2010
                                       No. 08-41337
                                                                            Lyle W. Cayce
                                                                                 Clerk
UNITED STATES OF AMERICA,

                                                   Plaintiff-Appellee

v.

FRANCISCO DE JESUS RODRIGUEZ,

                                                   Defendant-Appellant


                    Appeal from the United States District Court
                         for the Southern District of Texas
                            USDC No.1:08-CR-697-ALL


 ON REMAND FROM THE SUPREME COURT OF THE UNITED STATES

Before REAVLEY, JOLLY, and WIENER, Circuit Judges.
PER CURIAM:*
        Defendant-Appellant Francisco De Jesus Rodriguez pleaded guilty to being
found unlawfully in the United States after deportation following a conviction
for an aggravated felony and was sentenced to a 33-month term of
imprisonment. Rodriguez appealed his sentence, arguing that (1) the second of
his possession convictions should not have been considered an aggravated felony
for purposes of U.S.S.G. § 2L1.2(b)(1)(C) because the government failed to prove


       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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: 08-41337   Document: 00511170368 Page: 2        Date Filed: 07/12/2010
                                No. 08-41337

that it was committed after his first possession conviction had become final, and
(2) the government failed to prove that his second conviction was secured in
compliance with 21 U.S.C. § 851. We affirmed the judgment of the district court.
United States v. Rodriguez, 348 F. App’x 960, 963 (5th Cir. 2009).          After
Rodriguez petitioned for a writ of certiorari, the Supreme Court vacated our
decision and remanded the case for consideration in light of Carachuri-Rosendo
v. Holder, __S. Ct. __, 

(June 14, 2010) (No. 09-60). Rodriguez
v. United States, __S. Ct.__, 

(June 21, 2010) (No. 09-8474). In
accordance with the Supreme Court’s ruling in Carachuri-Rosendo, we VACATE
the sentence and REMAND for resentencing.




                                       2