
    UNITED STATES of America, Plaintiff-Appellee, v. Alfredo SANDOVAL-VALLEJO, Also Known as Alfredo Vallejo, Also Known as Alfredo Galindo, Defendant-Appellant.
    No. 06-50295
    Conference Calendar.
    United States Court of Appeals, Fifth Circuit.
    Sept. 21, 2007.
    Joseph H. Gay, Jr., Assistant U.S. Attorney, U.S. Attorney’s Office, Western District of Texas, San Antonio, TX, for Plaintiff-Appellee.
    Philip J. Lynch, Federal Public Defender’s Office, Western District of Texas, San Antonio, TX, for Defendant-Appellant.
    Before JONES, Chief Judge, SMITH and STEWART, Circuit Judges.
   ON REMAND FROM THE SUPREME COURT OF THE UNITED STATES

PER CURIAM:

This court affirmed the sentence of Alfredo Sandoval-Vallejo. The Supreme Court vacated and remanded for further consideration in light of Lopez v. Gonzales, — U.S.—, 127 S.Ct. 625, 166 L.Ed.2d 462 (2006). Sandoval-Vallejo challenges the district court’s increase in his term of imprisonment based on its determination that his conviction of cocaine possession constituted an aggravated felony for purposes of U.S.S.G. § 2L1.2(b)(l)(C). Although Sandoval-Vallejo has been released from prison, his case is not moot, because he is serving his supervised release term and is present in the United States. Cf. United States v. Rosenbaum-Alanis, 483 F.3d 381, 382-83 (5th Cir.2007).

Under Lopez, the district court committed plain error. See Lopez, 127 S.Ct. at 638; United States v. Villegas, 404 F.3d 355, 364 (5th Cir.2005). Because Sandoval-Vallejo has shown that there is a reasonable probability that he would have received a lesser sentence if not for misapplication of the guidelines, the plain error affected his substantial rights and seriously affected the fairness of the proceeding. See Villegas, 404 F.3d at 364-65.

Accordingly, the conviction is AFFIRMED, and the sentence is VACATED and REMANDED for resentencing. On remand, Sandoval may seek a modification of his term of supervised release pursuant to 18 U.S.C. § 3583(e)(2). 
      
       Pursuant to 5th Cir R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4.
     