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. 06-40127
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
VERSUS
JOSE CONTRERAS-JIMENEZ,
Defendant-Appellant,
Appeal from the United States District Court
For the Southern District of Texas
2:05-CR-587-ALL
ON REMAND FROM THE SUPREME COURT OF THE UNITED STATES
Before DAVIS, SMITH and WIENER, Circuit Judges.
PER CURIAM:*
The Appellant Jose Contreras-Jimenez (“Contreras”) pleaded
guilty to being illegally present in the United States following
deportation, in violation of 8 U.S.C. § 1326(a) & (b). On December
*
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this opinion should not be published and is not precedent except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.
27, 2004, the district court sentenced him to serve 15 months in
the custody of the Bureau of Prisons followed by 3 years of
supervised release.
Contreras 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
Contreras 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
Contreras 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. Contreras-Jimenez, 195 F.App'x 271 (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 Contreras 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