United States Court of Appeals
Fifth Circuit
F I L E D
UNITED STATES COURT OF APPEALS
For the Fifth Circuit March 29, 2007
Charles R. Fulbruge III
Clerk
No. 05-41400
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
VERSUS
EVERARDO ROSENBAUM-ALANIS
Defendant-Appellant.
Appeal from the United States District Court
For the Southern District of Texas, Brownsville
ON REMAND FROM THE SUPREME COURT OF THE UNITED STATES
Before JONES, Chief Judge, and JOLLY and DAVIS, Circuit Judges.
W. EUGENE DAVIS, Circuit Judge:
In our previous opinion, we affirmed the conviction and
sentence of the Appellant Everardo Rosenbaum-Alanis (“Rosenbaum”).
On December 11, 2006, the Supreme Court vacated our judgment and
remanded the case to us for reconsideration in light of Lopez v.
Gonzalez.1 On remand, we conclude that Rosenbaum’s release from
prison and subsequent deportation renders us incapable of granting
1
127 S.Ct. 625 (2006).
relief to the appellant and we dismiss the appeal as moot.
Rosenbaum pleaded guilty to an indictment charging him with
being found in the United States after having been convicted of an
aggravated felony in violation of 8 U.S.C. § 1326. After
calculating his Guideline range at 18 to 24 months, the district
court sentenced Rosenbaum to 18 months in the custody of the United
States Bureau of Prisons, to be followed by a three-year term of
supervised release.
Rosenbaum appealed from the judgment of conviction and
sentence, arguing that the district court miscalculated the
advisory Sentencing Guidelines range when it found that his state
felony conviction for possession of marihuana was an “aggravated
felony” mandating an eight-level increase in his offense level
calculation. This court rejected Rosenbaum’s claim as foreclosed
by its precedent. The Supreme Court granted certiorari and
remanded the case for reconsideration in light of its opinion in
Lopez.
In Lopez, the Supreme Court held that a state felony
conviction for simple possession of a controlled substance that was
not punishable as a felony under the federal Controlled Substances
Act was not a “drug trafficking crime” under 18 U.S.C. § 924(c) and
hence not an “aggravated felony” under 8 U.S.C. § 1101 (a)(43)(B).2
Appellant argues that, in light of Lopez, his Texas felony
2
Lopez, 127 S.Ct. at 629-633.
2
conviction for simple possession of a controlled substance does not
qualify as an aggravated felony because that crime was punishable
only as a misdemeanor under the federal Controlled Substances Act
and, accordingly, the district court erred in enhancing his
sentence based on the Texas conviction. He argues further that,
because the district court treated his previous conviction as an
aggravated felony, he was eligible for (and received) a maximum
three year term of supervised release,3 and that without the
aggravated felony enhancement, the maximum term of supervised
release would have been one year.4
Because Rosenbaum has completed the confinement portion of his
sentence, any argument that the prison term should be reduced is
moot and the only portion of the sentence remaining for
consideration is the defendant’s term of supervised release. In
order to resentence the defendant to correct any error in the
defendant’s term of supervised release, Federal Rule of Criminal
Procedure 43 requires the defendant to be present and have the
opportunity to allocute.
Both parties advise, however, that the defendant has completed
his term of imprisonment and has been deported.
Because the defendant has been deported to the Republic of
Mexico and is legally unable, without permission of the Attorney
3
See 8 U.S.C. § 1326(b); 18 U.S.C. § 3583(b); 18 U.S.C. § 3559.
4
See 18 U.S.C. § 3583(b).
3
General, to reenter the United States to be present for a
resentencing proceeding as required by Rule 43, there is no relief
we are able to grant him and his appeal is moot.
Rosenbaum argues that this court’s decision in United States
v. Lares-Meraz5 compels a contrary conclusion. In Lares-Meraz, the
defendant, like Rosenbaum, was released and deported during the
pendency of his appeal, while remaining subject to an unexpired
term of supervised release. The panel in Lares-Meraz concluded
that the case was not moot because of this remaining term of
supervised release. The panel, however, was not faced with the
prospect of resentencing the defendant because defense counsel
conceded that any sentencing error was harmless. The panel
therefore affirmed the sentence.
Lares-Meraz does not control this case. By conceding that any
error which formed the basis for his appeal was harmless and
presenting no argument that militated against affirming the
sentence, the defendant in Lares-Meraz did not seek any relief that
the court could not grant. By contrast, in this case, the
defendant, who is barred from entering the United States and who
therefore cannot be resentenced, requests relief which we are
unable to grant.6
5
452 F.3d 352 (5th Cir. 2006).
6
See 13A Charles Alan Wright, Arthur R. Miller & Edward H.
Cooper, Federal Practice and Procedure: Jurisdiction and Related
Matters § 3553 (2d ed. 1984) (“[A] startling number of cases can be
found dealing with the problems of mootness that arise as events
4
We further reject defense counsel's argument that the
possibility of obtaining a waiver of the defendant's presence at
the sentencing hearing compels remand. No waiver has been
presented to this court and the possibility of a future waiver is
speculative.
The appeal is therefore DISMISSED.
overtake the pace of decision . . . . The central question
nonetheless is constant–whether decision of a once living dispute
continues to be justified by a sufficient prospect that the
decision will have an impact on the parties.”).
5