U.S. v. Prado-Ortiz

Full title: UNITED STATES of America, Plaintiff-Appellee, v. Alvaro PRADO-ORTIZ…

Court: United States Court of Appeals, Fifth Circuit

Date published: May 15, 2007

227 F. App'x 421 (5th Cir. 2007)

Opinion

No. 05-41516 Conference Calendar.

May 15, 2007.

James Lee Turner, Assistant U.S. Attorney, David Hill Peck, U.S. Attorney's Office Southern District of Texas, Houston, TX, for Plaintiff-Appellee.

Marjorie A. Meyers, Federal Public Defender, Michael L. Herman, Federal Public Defender's Office Southern District of Texas, Houston, TX, for Defendants-Appellant.

Appeal from the United States district court for the Southern District of Texas (5:05-CR-349-ALL).

Before JOLLY, DeMOSS, and STEWART, Circuit Judges.

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 the Court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4.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, Alvaro Prado-Ortiz. United States v. Prado-Ortiz, 203 Fed.Appx. 595 (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 Prado-Ortiz has completed the confinement portion of his sentence and has apparently been deported from the United States, although he remains subject to the terms of his supervised release. 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 Prado-Ortiz is barred from entering the United States, we cannot grant his request to be resentenced. Prado-Ortiz recognizes this precedent and wishes to preserve the issue for further review. The appeal is moot and therefore DISMISSED.