United States v. Mortera

234 F. App'x 222

• Court: Court of Appeals for the Fifth Circuit
• Decided: July 2, 2007
• Docket: 05-40364
• Status: Unpublished

Opinion

ON REMAND FROM THE SUPREME COURT OF THE UNITED STATES

PER CURIAM: *

Mr. Mortera pleaded guilty to the charge of attempted illegal re-entry in violation of 8 U.S.C. § 1326 and was sentenced to 21 months of imprisonment, followed by three years of supervised relief. We previously affirmed his sentence. United States v. Mortera, 169 Fed.Appx. 203 (5th Cir.2006). The Supreme Court has vacated and remanded the case for reconsideration in light of Lopez v. Gonzales, — U.S. -, 127 S.Ct. 625, 166 L.Ed.2d 462 (2006). Gutierrez-Tovar et al. v. United States, — U.S. -, 127 S.Ct. 828, 166 L.Ed.2d 662 (2006). Following the Supreme Court’s remand, we requested and received supplemental letter briefs from both parties regarding the impact of Lopez.

Mr. Mortera has since completed his term of imprisonment; counsel concedes his removal. His appeal is therefore moot, according to binding circuit precedent. United States v. Rosenbaum-Alanis, 483 F.3d 381, 383 (5th Cir.2007) (“Because the defendant has been deported ... and is legally unable, without permission of the Attorney General, to reenter the United States to be present for a resentencing proceeding as required by Rule 43, there is no relief we are able to grant him and his appeal is moot.”). We therefore DISMISS the appeal as to the judgment of sentence. We AFFIRM the judgment of conviction; Mr. Mortera’s arguments in that regard remain foreclosed by Almendarez-Torres v. United States, 523 U.S. 224, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998).

* Pursuant to 5th Cir. R. 47.5, the Court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4.