United States Court of Appeals
Fifth Circuit
F I L E D
UNITED STATES COURT OF APPEALS
For the Fifth Circuit May 8, 2007
Charles R. Fulbruge III
Clerk
No. 05-41749
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
VERSUS
FLORENCIO JIMENEZ-ESTEBAN,
Defendant, Appellant,
Appeal from the United States District Court
For the Southern District of Texas
Before DAVIS, SMITH and WIENER, Circuit Judges.
PER CURIAM:*
The Appellant Florencio Jimenez-Esteban(“Jimenez”) pleaded
guilty to being illegally present in the United States following
deportation, in violation of 8 U.S.C. § 1326(a) & (b). On October
31, 2005, the district court sentenced him to serve 24 months in
*
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this opinion should not be published and is not precedent except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.
the custody of the Bureau of Prisons followed by 2 years of
supervised release.
Jimenez appealed from the judgment of conviction and sentence,
arguing that his prior conviction for possession of a controlled
substance was not an aggravated felony and challenging the
constitutionality of the sentencing enhancement he received based
on this finding. We affirmed the judgment.1
Jimenez filed a timely petition for a writ of certiorari with
the United States Supreme Court. The Court granted the petition,
vacated our judgment, and remanded the case to this court for
further consideration in light of Lopez v. Gonzales.2
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).3
Jimenez argues that, in light of Lopez, his conviction for
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,
1
See United States v. Jimenez-Esteban, 195 F.App'x 267 (5th
Cir. 2006).
2
127 S.Ct. 625 (2006).
3
Lopez, 127 S.Ct. At 629-633.
2
accordingly, the district court erred in enhancing his sentence
based on the conviction.
On remand, the parties advise that Jimenez completed the
imprisonment component of his sentence and was deported to Mexico,
although his term of supervised release is ongoing. Under these
circumstances, even assuming Lopez error, because the defendant has
been deported and is unable (without the permission of the Attorney
General) to reenter the United States and 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.4 The appeal is
therefore DISMISSED.
4
See United States v. Rosenbaum-Alanis, –-F.3d ---, 2007 WL
926832 (5th Cir. March 29, 2007).
3