United States v. Contreras-Jimenez

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this opinion should not be published and is not precedent except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).