United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT April 16, 2007
Charles R. Fulbruge III
Clerk
No. 05-40024
Summary Calendar
UNITED STATES OF AMERICA
Plaintiff - Appellee
v.
FRANCISCO JAVIER LOZANO-MIRELES
Defendant - Appellant
Appeal from the United States District Court
for the Southern District of Texas
No. 5:04-CR-1171-1
ON REMAND FROM THE SUPREME COURT OF THE UNITED STATES
Before KING, SMITH, and GARZA, Circuit Judges.
PER CURIAM:*
In a previous opinion in this case, we affirmed the
conviction of defendant-appellant Francisco Javier Lozano-Mireles
(“Lozano”) but vacated his sentence and remanded for
resentencing. See United States v. Lozano-Mireles, 161 F. App’x
432, 433 (5th Cir. 2006) (per curiam) (unpublished opinion). On
December 11, 2006, the Supreme Court vacated our judgment and
*
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this opinion should not be published and is not precedent except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.
remanded the case to us for further consideration in light of
Lopez v. Gonzales, 127 S. Ct. 625 (2006). See Gutierrez-Tovar v.
United States, 127 S. Ct. 828 (2006). On remand, we conclude
that Lozano’s appeal is now moot as a result of his release from
prison and subsequent deportation, and we dismiss his appeal.
Lozano was convicted of being found knowingly and unlawfully
present in the United States after a previous deportation in
violation of 8 U.S.C. § 1326. Applying the then-mandatory
version of the United States Sentencing Guidelines (“U.S.S.G.” or
“Guidelines”), the district court calculated Lozano’s total
offense level as thirteen and his criminal-history category as
III, yielding a sentencing range of eighteen to twenty-four
months’ imprisonment. The court’s calculation of Lozano’s total
offense level included an eight-level enhancement pursuant to
U.S.S.G. § 2L1.2(b)(1)(C) for a prior aggravated-felony
conviction; Lozano’s prior conviction was a Florida felony
conviction for cocaine possession. The district court imposed a
sentence of eighteen months’ imprisonment and three years’
supervised release.
On appeal, Lozano argued (1) that his sentence was imposed
in violation of United States v. Booker, 543 U.S. 220 (2005);
(2) that the eight-level Guidelines enhancement for a prior
aggravated-felony conviction was improper; and (3) that the
“felony” and “aggravated felony” provisions of § 1326(b)(1) and
(2) were unconstitutional facially and as applied. We rejected
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Lozano’s third argument as foreclosed by Almendarez-Torres v.
United States, 523 U.S. 224, 235 (1998), and consequently we
affirmed his conviction. We also rejected his second argument as
foreclosed by United States v. Hinojosa-Lopez, 130 F.3d 691, 694
(5th Cir. 1997). But concluding that the district court erred by
sentencing Lozano pursuant to a mandatory Guidelines scheme, we
vacated his sentence and remanded for resentencing. The Supreme
Court granted certiorari, vacated our judgment, and remanded the
case for further consideration in light of Lopez.
On remand, the parties alert us to the fact that Lozano has
completed the confinement portion of his sentence and has
apparently been deported from the United States, although his
term of supervised release is ongoing. A condition of Lozano’s
supervised release is that he not illegally reenter the United
States during the term of his supervised release. Thus, assuming
arguendo that there is Lopez error, Lozano is prohibited from
reentering the United States (without permission from the
Attorney General) to be present for a resentencing proceeding
before the district court. But Rule 43 of the Federal Rules of
Criminal Procedure requires Lozano’s presence at resentencing.
This court recently addressed the status of an appeal with
nearly identical circumstances in another case remanded by the
Supreme Court in light of Lopez. In United States v. Rosenbaum-
Alanis, we concluded that such an appeal was moot because there
was no relief we could grant the defendant. No. 05-41400, 2007
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WL 926832, at *1-2 (5th Cir. Mar. 29, 2007). We reasoned:
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
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.
Id. at *1-2.
Rosenbaum-Alanis controls our decision in this case.
Accordingly, Lozano’s appeal is DISMISSED as moot.
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