United States v. Rivera-Alvarez

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
May 17, 2007
FOR THE FIFTH CIRCUIT
_____________________ Charles R. Fulbruge III
Clerk
No. 06-40278
Conference Calendar
_____________________

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

versus

ELIAS RIVERA-ALVAREZ,

Defendant - Appellant.

Appeal from the United States District Court
for the Southern District of Texas
(05-CR-459)

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

the Appellant, Elias Rivera-Alvarez (“Rivera”). United States v.

Rivera-Alvarez, 202 Fed.Appx. 830 (5th Cir. 2006). The Supreme

Court vacated and remanded the case for reconsideration in the

light of Lopez v. Gonzales, 127 S.Ct. 625 (2006). Ochoa-Perez v.

United States, 127 S.Ct. 1263 (2007). Following the Supreme

*
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this opinion should not be published and is not precedent except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.
Court’s remand, we requested and received supplemental letter

briefs from both parties with respect to the impact of Lopez.

In the light of Lopez, the district court erred by enhancing

Rivera’s sentence based on his Texas conviction for possession of

cocaine. Because Rivera has completed service of his term of

imprisonment and was released by the Bureau of Prisons on August

31, 2006, any argument that the sentence of imprisonment should be

reduced is moot and the only portion of the sentence remaining for

consideration is Rivera’s term of supervised release.

However, as both parties noted in their supplemental letter

briefs, Rivera presumably has been deported. In order to

resentence him and reduce his term of supervised release, Federal

Rule of Criminal Procedure 43 requires the defendant to be present

and have the opportunity to allocute. Because Rivera has been

deported and is legally unable, without permission of the Attorney

General, to reenter the United States to be present for a

resentencing proceeding, there is no relief we are able to grant

Rivera and his appeal is moot. See United States v. Rosenbaum-

Alanis, No. 05-41400, 2007 WL 926832 (5th Cir. March 29, 2007).

Rivera asserts that Rosenbaum-Alanis was wrongly decided, and

wishes to preserve the issue for further review. Nevertheless, for

purposes of this appeal, it remains binding precedent.

Accordingly, the appeal is

DISMISSED.

2