Summary
In Fallon, the Court recognized a retaliatory hostile work environment claim when it applied the elements of a retaliation claim as it analyzed a retaliatory hostile work environment claim.
Summary of this case from Barnes v. McHughOpinion
No. 05-41467 Conference Calendar.
May 15, 2007.
James Lee Turner, Assistant U.S. Attorney, Tony Ray Roberts, U.S. Attorney's Office Southern District of Texas, Houston, TX, for Plaintiff-Appellee.
Thomas S. Berg, Margaret Christina Ling, Assistant Federal Public Defender, Marjorie A. Meyers, Federal Public Defender, 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 (7:05-CR-381-ALL).
Before JOLLY, DeMOSS, and STEWART, Circuit Judges. U.S. v. LOPEZ-RODRIGUEZ
This court previously affirmed the conviction and sentence of Appellant, Jaime Zagal-Meraz. United States v. Zagal-Meraz, 203 Fed.Appx. 598 (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 Zagal-Meraz has completed the confinement portion of his sentence and has apparently been deported from the United States, although heremains 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 Zagal-Meraz is barred from entering the United States, we cannot grant his request to be resentenced. Zagal Meraz recognizes this precedent and wishes to preserve the issue for further review.
The appeal is moot and therefore DISMISSED.