United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
April 20, 2007
FOR THE FIFTH CIRCUIT
_____________________ Charles R. Fulbruge III
Clerk
No. 05-20037
_____________________
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
HOVEL RIASCOS-CUENU,
Defendant - Appellant.
Appeal from the United States District Court
for the Southern District of Texas, Houston
USDC No. 4:04-CR-345-ALL
ON REMAND FROM THE SUPREME COURT OF THE UNITED STATES
Before JOLLY and BARKSDALE, Circuit Judges.*
PER CURIAM:**
This court previously affirmed the conviction and sentence of
the Appellant, Hovel Riascos-Cuenu (“Riascos”). United States v.
Riascos-Cuenu, 428 F.3d 1100 (5th Cir. 2005). The Supreme Court
vacated and remanded the case for reconsideration in the light of
Lopez v. Gonzalez, 127 S.Ct. 625 (2006). Riascos-Cuenu v. United
States, 127 S.Ct. 827 (2007).
*
This matter is being decided by a quorum. See 28 U.S.C.
46(d).
**
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this opinion should not be published and is not precedent except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.
In the light of Lopez, the district court erred by enhancing
Riascos’s sentence based on a Texas conviction for possession of
cocaine. Because Riascos has completed service of his term of
imprisonment and was released by the Bureau of Prisons on January
12, 2007, any argument that the sentence of imprisonment should be
reduced is moot and the only portion of the sentence remaining for
consideration is Riascos’s term of supervised release.
However, as both parties noted in supplemental letter briefs
filed with this court, Riascos presumably has been deported. In
order to resentence him and reduce his term of supervised release,
Federal Rule of Criminal Procedure 43 requires the defendant to be
present and have the opportunity to allocute. Because Riascos has
been deported and is legally unable, without permission of the
Attorney General, to reenter the United States to be present for a
resentencing proceeding, there is no relief we are able to grant
Riascos and his appeal is moot. See United States v. Rosenbaum-
Alanis, No. 05-41400, 2007 WL 926832 (5th Cir. March 29, 2007).
The appeal is therefore DISMISSED.
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