U.S. v. Rocha-Gaytan

Full title: UNITED STATES of America, Plaintiff-Appellee, v. Alfonso ROCHA-GAYTAN…

Court: United States Court of Appeals, Fifth Circuit

Date published: May 15, 2007

227 F. App'x 419 (5th Cir. 2007)

Opinion

No. 06-40111 Conference Calendar.

May 15, 2007.

James Lee Turner, Assistant U.S. Attorney, Renata Ann Gowie. Assistant U.S. Attorney, U.S. Attorney's Office Southern District of Texas, Houston, TX, for Plaintiff-Appellee.

Marjorie A. Meyers, Federal Public Defender, Laura Fletcher Leavitt, Assistant 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 (2:05-CR-594-ALL).

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PER CURIAM:[fn*] [fn*] Pursuant to 5th Cir. R. 47.5, the Court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4.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, Alfonso Rocha-Gaytan. United States v. Rocha-Gaytan, 202 Fed.Appx. 827 (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 Rocha-Gaytan 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 re-sentenced, the Court could not grant the relief requested. Id. at 383.

We find Rosenbaum-Alanis controlling, and because Rocha-Gaytan is barred from entering the United States, we cannot grant his request to be resentenced. Rocha-Gaytan recognizes this precedent and wishes to preserve the issue for further review.

The appeal is moot and therefore DISMISSED.