United States v. Efrain Garcia-Jaimes

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT FILED U.S. COURT OF APPEALS ELEVENTH CIRCUIT SEPT 25, 2008 No. 05-14475 THOMAS K. KAHN CLERK D. C. Docket No. 03-00493 CR-17-1

UNITED STATES OF AMERICA, Plaintiff-Appellee, versus

ROBERTO MORENO-GONZALEZ, a.k.a. Beto, Defendant-Appellant. _______________ No. 05-17251 _______________ D. C. Docket No. 03-00493 CR-3-1

UNITED STATES OF AMERICA, Plaintiff-Appellee, versus

LEONARDO NUNEZ-VIRRAIZABAL, Defendant-Appellant. Appeals from the United States District Court for the Northern District of Georgia (September 25, 2008)

ON REMAND FROM THE SUPREME COURT OF THE UNITED STATES

Before DUBINA and COX, Circuit Judges, and SCHLESINGER,* District Judge.

PER CURIAM:

This case returns to us on remand from the Supreme Court of the United States.

The Supreme Court vacated this court’s judgment in the Roberto Moreno-Gonzalez

and Leonardo Nunez-Virraizabal cases and remanded for further consideration in

light of Cuellar v. United States, 128 S. Ct. 1994 (2008). United States v. Garcia-

Jaimes, 484 F.3d 1311 (11th Cir. 2007), vacated sub nom. Moreno-Gonzalez v.

United States, 128 S. Ct. 2901 (2008) and Nunez-Virraizabal v. United States, 128

S. Ct. 2901 (2008).

The parties have filed supplemental briefs following remand, and agree that

only the convictions on Count 26 are at issue. Accordingly, we now vacate Roberto’s

and Leonardo’s convictions on Count 26, and vacate Roberto’s and Leonardo’s * Honorable Harvey E. Schlesinger, United States District Judge for the Middle District of Florida, sitting by designation.

2 sentences, and remand their cases to the United States District Court for the Northern

District of Georgia for further consideration and further proceedings consistent with

the opinion of the Supreme Court in Cuellar.

We reinstate the vacation of Roberto’s gun conviction and affirm all

convictions other than Roberto’s gun conviction and Roberto’s and Leonardo’s Count

26 convictions for reasons stated in our prior opinion.

AFFIRMED IN PART; VACATED IN PART; VACATED AND

REMANDED IN PART.

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