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. 05-41626
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
VERSUS
ALFREDO PEREZ-MONTERO, also known as Jose Luis Alfredo,
Defendant-Appellant.
Appeal from the United States District Court
for the Southern District of Texas
(05-CR-173)
ON REMAND FROM THE SUPREME COURT OF THE UNITED STATES
Before JOLLY, DeMOSS, and STEWART, Circuit Judges.
PER CURIAM:*
This court previously affirmed the conviction and sentence of
Appellant, Alfredo Perez-Montero. United States v. Perez-Montero,
202 F. App’x 827 (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).
*
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opinion should not be published and is not precedent except under the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 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 Perez-Montero has completed the
confinement portion of his sentence but remains subject to the
terms of his supervised release. Also, the government asserts,
without challenge, that Perez-Montero has been deported. 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 Perez-
Montero is barred from entering the United States, we cannot grant
his request to be resentenced.
The appeal is moot and therefore DISMISSED.