United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
July 2, 2007
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
Clerk
No. 05-40819
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
TITO HERRERA-TREJO,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. 5:04-CR-2108-ALL
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ON REMAND FROM
THE SUPREME COURT OF THE UNITED STATES
Before GARZA, DENNIS, and PRADO, Circuit Judges.
PER CURIAM:*
Mr. Herrera-Trejo pleaded guilty to the charge of
attempted illegal re-entry in violation of 8 U.S.C. §
*
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this opinion should not be published and is not precedent except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.
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1326 and was sentenced to 27 months of imprisonment,
followed by three years of supervised relief. We
previously affirmed the judgment. United States v.
Herrera-Trejo, 169 Fed. Appx. 225, 226 (5th Cir. 2006).
The Supreme Court has vacated and remanded the case for
reconsideration in light of Lopez v. Gonzalez, 127 S.Ct.
625 (2006). Gutierrez-Tovar et al. v. United States, 127
S.Ct. 828 (2006). Following the Supreme Court's remand,
we requested and received supplemental letter briefs from
both parties regarding the impact of Lopez.
Mr. Herrera has since completed his term of
imprisonment; immigration authorities placed a detainer
on him and his counsel concedes his probable removal. His
appeal is therefore moot, according to binding circuit
precedent. United States v. Rosenbaum-Alanis, 483 F.3d
381, 383 (5th Cir. 2007) (“Because the defendant 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 as required by
Rule 43, there is no relief we are able to grant him and
his appeal is moot.”). We therefore DISMISS the appeal as
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to the judgment of sentence. We AFFIRM the judgment of
conviction; Mr. Herrera’s arguments in that regard remain
foreclosed by Almendarez-Torres v. United States, 523
U.S. 224 (1998).
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