Wednesday, January 03, 2007

Fives Acknowledge Lopez v. Gonzales Applies to Criminal Cases

United States v. Estrada-Mendoza, No. 05-41627 (5th Cir. Jan. 3, 2007) (per curiam) (Higginbotham, Smith, DeMoss)

Well, that's settled:
Given the Court’s reference to the Guidelines, its citation to Hinojosa-Lopez, and its interpretation of a phrase directly adopted by the Guidelines, Lopez ineluctably applies with equal force to immigration and criminal cases. The Government agrees. As Estrada was sentenced under now-rejected jurisprudence, we vacate his sentence and remand for resentencing.
To recap, this means that a conviction for a drug offense does not qualify as an "aggravated felony" unless the offense would be punishable as a felony under the federal Controlled Subtances Act.

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