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. 05-41516
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
VERSUS
ALVARO PRADO-ORTIZ
Defendant-Appellant.
Appeal from the United States District Court
for the Southern District of Texas
(5:05-CR-349-ALL)
Before JOLLY, DeMOSS, and STEWART, Circuit Judges.
PER CURIAM:*
This court previously affirmed the conviction and sentence of
Appellant, Alvaro Prado-Ortiz. United States v. Prado-Ortiz, 203 F.
App’x 595 (5th Cir. 2006). On March 30, 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).
Following the Supreme Court’s remand we received supplemental
*
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opinion should not be published and is not precedent except under the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.
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 controlled substance 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 Prado-Ortiz has completed the
confinement portion of his sentence and has apparently been
deported from the United States, although he remains subject to the
terms of his supervised release. 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 Prado-Ortiz
is barred from entering the United States, we cannot grant his
request to be resentenced. Prado-Ortiz recognizes this precedent
and wishes to preserve the issue for further review.
The appeal is moot and therefore DISMISSED.