
    UNITED STATES of America, Plaintiff-Appellee, v. Alexander MORALES-GARCIA, Defendant-Appellant.
    No. 03-40827.
    Summary Calendar.
    United States Court of Appeals, Fifth Circuit.
    Decided Sept. 27, 2004.
    James Lee Turner, Renata Ann Gowie, Assistant U.S. Attorneys, Houston, TX, for Plaintiff-Appellee.
    Timothy William Crooks, Assistant Federal Public Defender, Roland E. Dahlin, II, Federal Public Defender, Jeffrey L. Wilde, Assistant Federal Public Defender, Houston, TX, for Defendant-Appellant.
    Before JONES, BARKSDALE and PRADO, Circuit Judges.
   PER CURIAM:

Alexander Morales-Garcia appeals his sentence for illegal reentry following deportation after having been convicted of an aggravated felony. He argues that the district court erred in holding that his Nebraska misdemeanor conviction for third degree sexual assault was an “aggravated felony,” thereby enhancing his base offense level by eight levels pursuant to U.S.S.G. § 2L1.2(b)(l)(C) (2002).

The Government concedes that the eight-level enhancement was erroneous; the elements of the offense of Morales’s misdemeanor state conviction do not describe the sexual abuse of a minor, and the district court was precluded from looking to Morales’s underlying conduct to make such a determination. See United States v. Zavala-Sustaita, 214 F.3d 601, 603 (5th Cir.2000). We therefore VACATE Morales’s sentence and REMAND for resentencing. In light of the foregoing, the issue whether the “felony” and “aggravated felony” provisions of 8 U.S.C. § 1326(b)(1) & (2) are unconstitutional in light of Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), is moot.

SENTENCE VACATED; REMANDED FOR RESENTENCING. 
      
       Pursuant to 5th Cir. R. 47.,5 the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4.
     