* 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

FILED

August 15, 2007

Charles R. Fulbruge III

Clerk

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 06-50316

Summary Calendar

UNITED STATES OF AMERICA

Plaintiff-Appellee

v.

IVAN EDUARDO ROLDAN-OLIVARES

Defendant-Appellant

Appeal from the United States District Court

for the Western District of Texas

USDC No. 2:05-CR-154

Before JOLLY, DAVIS, and DeMOSS, Circuit Judges.

PER CURIAM:*

Ivan Eduardo Roldan-Olivares pleaded guilty to illegal reentry into the

United States after deportation in violation of 8 U.S.C. § 1326. He appeals the

sentence imposed by the district court, arguing that the district court erred in

holding that his prior California conviction for possession of a controlled

substance was an aggravated felony under U.S.S.G. § 2L1.2(b)(1)(C) in view of

Lopez v. Gonzales, 127 S. Ct. 625 (2006). Because Roldan-Olivares did not raise
No. 06-50316

2

this issue in the district court, review is limited to plain error. United States v.

Walker, 410 F.3d 754, 759 (5th Cir. 2005). This court may correct a forfeited

error only when the appellant shows: (1) there is an error, (2) that is clear or

obvious, and (3) that affects his substantial rights. United States v. Olano, 507

U.S. 725, 731-37 (1993). The error must be clear or obvious under current law

at the time of the appeal. United States v. Salinas, 480 F.3d 750, 756 (5th Cir.

2007). If these factors are established, the decision to correct the forfeited error

is within the sound discretion of the court, and the court will not exercise that

discretion unless the error seriously affects the fairness, integrity, or public

reputation of judicial proceedings. Olano, 507 U.S. at 735-36.

The Government argues that because Roldan-Olivares had two prior

convictions for possession of controlled substances, his second conviction

constituted recidivist possession under 21 U.S.C. § 844(a) and an “aggravated

felony” as defined by 8 U.S.C. § 1001(a)(43)(B). The Government argues that

because Roldan-Olivares’s second prior possession conviction was an aggravated

felony, the district court did not err in increasing his offense level by eight levels

pursuant to § 2L1.2(b)(1)(C).

Roldan-Olivares was arrested for possession of a narcotic controlled

substance on July 1, 1983 and convicted of this offense on February 11, 1985.

On October 10, 1984, he was again arrested for possession of a narcotic

controlled substance and was convicted of the second offense on October 31,

1984. Prior to Lopez, this court held that “it is only when a person violates

§ 844(a) after a prior conviction for a controlled substance violation has become

final that the offender may be sentenced under the statute’s recidivist

sentencing enhancement provisions for a period in excess of one year, elevating

the offense to that of a felony.” Smith v. Gonzales, 468 F.3d 272, 277 (5th Cir.

2006). At the time that Roldan-Olivares committed the second possession

offense on October 10, 1984, he had not yet been convicted of the first offense. 
No. 06-50316

3

Because Roldan-Olivares’s first possession conviction had not yet occurred --

much less become final -- at that time that he committed the second possession

offense, he could not have been sentenced under the recidivist sentencing

enhancement provision of § 844(a) for the second possession offense. See Smith,

468 F.3d at 277. Under Lopez, Roldan-Olivares’s second state conviction for

simple possession of a controlled substance was not an “aggravated felony.”

Lopez, 127 S. Ct. at 630-33; see United States v. Estrada-Mendoza, 475 F.3d at

258, 260-61 (5th Cir.), cert. denied, 127 S. Ct. 1845 (2007). Therefore, the district

court erred in enhancing Roldan-Olivares’s sentence by eight levels pursuant to

§ 2L1.2(b)(1)(C) based on his prior possession conviction. The error is clear or

obvious under the law in effect at the time of this appeal. See Salinas, 480 F.3d

at 756. Without the enhancement under § 2L1.2(b)(1)(C), his offense level would

have been 5 and his guidelines range would have been one to seven months. See

U.S.S.G. Ch. 5,Pt. A. Therefore, the error affected Roldan-Olivares’s substantial

rights. See Olano, 507 U.S. at 731-37. Because the error resulted in an increase

in Roldan-Olivares’s sentence, the error seriously affected the fairness, integrity,

or public reputation of the judicial proceedings. See id. at 735-36. Accordingly,

Roldan-Olivares’s SENTENCE is VACATED and the case is REMANDED for

resentencing in view of Lopez.