United States v. Bautista-Gonzalez

PER CURIAM: * Hector Ivan Bautista-Gonzalez appeals the 24-month sentence he received follow *381 ing his guilty plea conviction for illegal reentry, in violation of 8 U.S.C. § 1326. Bautista-Gonzalez contends that the district court misapplied the Sentencing Guidelines by characterizing his prior Texas state felony drug conviction for possession of a controlled substance as an “aggravated felony” for purposes of U.S.S.G. § 2L1.2(b)(1)(C). Given the Supreme Court’s decision in Lopez v. Gonzales, 549 U.S. 47, 127 S.Ct. 625, 166 L.Ed.2d 462 (2006), Bautista-Gonzalez is correct that his prior conviction is not an aggravated felony. See United States v. Estrada-Mendoza, 475 F.3d 258, 259-61 (5th Cir. 2007). The Government concedes that the district court erred in characterizing the state offense as an aggravated felony and in imposing an eight-level increase pursuant to § 2L1.2(b)(l)(C), but contends that the error was harmless. The Government has failed to meet its burden of showing that the error was harmless. See Fed. R.Crim.P. 52(a); United States v. Pineiro, 410 F.3d 282, 286 (5th Cir.2005); United States v. Mares, 402 F.3d 511, 520 n. 9 (5th Cir.2005). We VACATE Bautista-Gonzalez’s sentence and REMAND for resentencing. Footnotes [*] Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be *381 published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4.