United States v. Loredo-Pecina

243 F. App'x 8

• Court: Court of Appeals for the Fifth Circuit
• Decided: June 13, 2007
• Docket: 04-40440
• Status: Unpublished

Opinion

ON REMAND FROM THE SUPREME COURT OF THE UNITED STATES

PER CURIAM: *

This court affirmed the sentence of Gabriel Loredo-Pecina (Loredo). United, States v. Loredo-Pecina, 149 Fed.Appx. 312 (5th Cir.2005). 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). Mendoza-Torres v. United States, — U.S.-, 127 S.Ct. 826, 166 L.Ed.2d 660 (2006).

Loredo argues that his prior Texas felony conviction for possession of a controlled substance does not qualify as an aggravated felony under U.S.S.G. § 2L1.2, in light of Lopez. He also contends that his appeal is not moot despite his release from imprisonment and subsequent deportation.

In United States v. Rosenbaum-Alanis, 483 F.3d 381, 382-83 (5th Cir.2007), we held that an appellant’s challenge to the characterization of a state offense as an aggravated felony under § 2L1.2 was moot when the appellant had completed his term of imprisonment and had been deported. The court could not grant relief because the defendant was barred from entering the United States, and therefore could not be resentenced. Rosenbaum-Alanis, 483 F.3d at 383. Because Loredo is barred from entering the United States and cannot be present for a resentencing proceeding as required by Fed.R.CrimP. 43, we cannot grant his request to be resentenced. See id. Accordingly, Loredo’s appeal is DISMISSED as moot.

* Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4.