Opinion
No. 05-51449 Conference Calendar.
July 13, 2007.
Joseph H. Gay, Jr., Assistant U.S. Attorney, U.S. Attorney's Office, Western District of Texas, San Antonio, TX, for Plaintiff-Appellee.
Philip J. Lynch, Federal Public Defender's Office, Western District of Texas, San Antonio, TX, for Defendant-Appellant.
Appeal from the United States District Court for the Western District of Texas, No. 3:05-CR-652-ALL.
Before JONES, Chief Judge, SMITH and STEWART, Circuit Judges.
ON REMAND FROM THE SUPREME COURT OF THE UNITED STATES
In this case, sub nom. Sandoval-Vallejo v. United States, ___ U.S. ___, 127 S.Ct. 2031, 167 L.Ed.2d 760 (2007), the 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). The defendant has served his term of imprisonment and has been removed from the United States but remains subject to a term of supervised release.
We are governed by United States v. Rosenbaum-Alanis, 483 F.3d 381, 383 (5th Cir. 2007), but, because defendant remains subject to supervised release, he may seek modification of the term of supervised release under 18 U.S.C. § 3583(e), which does not require his presence. See United States v. Ayala-Flores, 225 Fed.Appx. 333 (5th Cir. 2007) (per curiam) (unpublished); United States v. Argueta-Hernandez, 225 Fed.Appx. 336 (5th Cir. 2007) (per curiam) (unpublished).
We therefore DISMISS this appeal as moot without prejudice to defendant's right to seek a modification of his term of supervised release.