U.S. v. Perez-Montero

Full title: UNITED STATES of America, Plaintiff-Appellee, v. Alfredo PEREZ-MONTERO…

Court: United States Court of Appeals, Fifth Circuit

Date published: May 15, 2007

245 F. App'x 335 (5th Cir. 2007)

Opinion

No. 05-41626.

May 15, 2007.

James Lee Turner, Assistant U.S. Attorney, Kathlyn Giannaula Snyder, Assistant U.S. Attorney, U.S. Attorney's Office, Southern District of Texas, Houston, TX, for Plaintiff-Appellee.

Marjorie A. Meyers, Federal Public Defender, Molly E. Odom, Federal Public Defender's Office, Southern District of Texas, Houston, TX, for Defendant-Appellant.

Appeal from the United States District Court for the Southern District of Texas (05-CR-173).

Before JOLLY, DeMOSS, and STEWART, Circuit Judges.

ON REMAND FROM THE SUPREME COURT OF THE UNITED STATES

PER CURIAM:[fn*] [fn*] Pursuant to 5th Cir. R. 47.5, the Court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4.

This court previously affirmed the conviction and sentence of Appellant, Alfredo Perez-Montero. United States v. Perez-Montero, 203 Fed.Appx. 596 (5th Cir. 2006). On March 30, 2007, the Supreme Court vacated our judgment in this case and remanded the case to this court for further consideration in light of Lopez v. Gonzales, ___ U.S. ___, 127 S.Ct. 625, 166 L.Ed.2d 462 (2006).

Following the Supreme Court's remand we received supplemental letter briefs from both parties with respect to the impact of Lopez. The government concedes and we agree that, under Lopez, the district court erred in imposing an eight-level enhancement for Appellant's prior controlled substance conviction. In light of this error, the issue on appeal is whether we should vacate the sentence and remand for resentencing or whether the appeal is now moot.

The parties agree that Perez-Montero has completed the confinement portion of his sentence but remains subject to the terms of his supervised release. Also, the government asserts, without challenge, that Perez-Montero has been deported. This Court recently found a similar case moot when the appellant had already been released from prison and deported. See United States v. Rosenbaum-Alanis, 483 F.3d 381 (5th Cir. 2007). Because the defendant in Rosenbaum-Alanis was barred from entering the United States, and therefore could not be resentenced, the Court could not grant the relief requested. Id. at 383.

We find Rosenbaum-Alanis controlling, and because Perez-Montero is barred from entering the United States, we cannot grant his request to be resentenced.

The appeal is moot and therefore DISMISSED.