United States Court of Appeals
Fifth Circuit
F I L E D
UNITED STATES COURT OF APPEALS
April 13, 2007
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
Clerk
No. 05-40020
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
VERSUS
MARGARITO PECENO-MONTANEZ,
Defendant-Appellant.
Appeal from the United States District Court
For the Southern District of Texas, Laredo
USDC No. 5:04-CR-1414-ALL
ON REMAND FROM THE SUPREME COURT OF THE UNITED STATES
Before JONES, Chief Judge, and BARKSDALE and BENAVIDES, Circuit
Judges.
PER CURIAM:*
This court previously affirmed the conviction and
sentence of the Appellant Margarito Peceno-Montanez (“Montanez”).
On December 11, 2006, the Supreme Court vacated and remanded the
case for reconsideration in light of Lopez v. Gonzalez, 127 S. Ct.
625 (2006).
*
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opinion should not be published and is not precedent except under the limited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 light of Lopez, the district court erred by enhancing
Montanez’s sentence based on a Texas conviction for simple
possession of a controlled substance. Because Montanez 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.
However, as the Federal Public Defender notes, Montanez
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 the defendant 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 Montanez 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.
2