United States Court of Appeals
Fifth Circuit
F I L E D
UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT May 15, 2007
Charles R. Fulbruge III
Clerk
No. 04-40518
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
VERSUS
CESAR TREJO-HERNANDEZ
Defendant-Appellant.
Appeal from the United States District Court
for the Southern District of Texas
(1:04-CR-41-ALL)
ON REMAND FROM THE SUPREME COURT OF THE UNITED STATES
Before KING, DeMOSS, and CLEMENT, Circuit Judges.
PER CURIAM:*
This court previously affirmed the conviction and sentence of
Appellant, Cesar Trejo-Hernandez. United States v. Trejo-Herandez,
149 F. App’x 307 (5th Cir. 2005). On January 17, 2007, the Supreme
Court vacated our judgment in this case and remanded the case to
this court for further consideration in light of Lopez v. Gonzales,
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opinion should not be published and is not precedent except under the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.
Following the Supreme Court’s remand we received supplemental
letter briefs from both parties with respect to the impact of
Lopez. The government concedes and we agree that, under Lopez, the
district court erred in imposing an eight-level enhancement for
Appellant’s prior drug conviction. In light of this error, the
issue on appeal is whether we should vacate the sentence and remand
for resentencing or whether the appeal is now moot.
The parties agree that Trejo-Hernandez has been released from
prison and remains subject to the terms of his supervised release,
but has previously been deported on August 16, 2006. This court
recently found a similar case moot when the appellant had already
been released from prison and deported. See United States v.
Rosenbaum-Alanis, __ F.3d __, No. 05-41400, 2007 WL 926832 (5th
Cir. Mar. 29, 2007). Because the defendant in Rosenbaum-Alanis was
barred from entering the United States, and therefore could not be
resentenced, the court could not grant the relief requested. Id. at
*2.
We find Rosenbaum-Alanis controlling, and because Trejo-
Hernandez is barred from entering the United States, we cannot
grant his request to be resentenced. Consequently, the appeal is
moot.
The appeal is therefore DISMISSED.