United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT July 10, 2007
Charles R. Fulbruge III
_______________________ Clerk
No. 04-40672
Summary Calendar
_______________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
CECILIO MENDOZA-TORRES,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
No. 5:04-CR-20-ALL
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ON REMAND FROM THE SUPREME COURT OF THE UNITED STATES
Before SMITH, GARZA, and PRADO, Circuit Judges.
PER CURIAM:*
This court previously affirmed the conviction and sentence
of Appellant Cecilio Mendoza-Torres (“Mendoza”). On December 11,
2006, the Supreme Court vacated that judgment and remanded the
*
Pursuant to 5TH CIRCUIT RULE 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that this opinion should not be published and is not precedent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 CIRCUIT
RULE 47.5.4.
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case for our reconsideration in light of its decision in Lopez v.
Gonzales, 127 S. Ct. 625 (2006). On remand and following this
court’s decision in United States v. Rosenbaum-Alanis, 483 F.3d
381 (5th Cir. 2006), we hold that Mendoza’s release from prison
and presumed subsequent deportation render us incapable of
granting him the relief he seeks. We therefore dismiss the appeal
as moot.
On February 19, 2004, Mendoza pleaded guilty to the
violation of 8 U.S.C. § 1326(b)(2), which forbids the re-entry of
deported aliens whose removal was subsequent to a conviction for
the commission of an aggravated felony. Because Mendoza was
previously convicted of possession of cocaine, an aggravated
felony under Texas law, the district court enhanced his sentence
by eight levels pursuant to U.S.S.G. § 2L1.2. Mendoza was
sentenced to three years imprisonment and three years of
supervised release.
Mendoza appealed to this court, contending that the district
court’s application of the Sentencing Guidelines was in error and
challenging the constitutionality of 8 U.S.C. § 1326(b). Our
precedent foreclosed both claims, and we affirmed the district
court’s decision on August 15, 2005. See United States v.
Mendoza-Torres, 145 Fed. Appx. 888 (5th Cir. 2005). The United
States Supreme Court granted certiorari and, in light of its
recent opinion in Lopez, remanded the case to this court for
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reconsideration.
In Lopez, the Supreme Court ruled that a state felony
conviction for mere possession of a controlled substance does not
amount to an aggravated felony under 8 U.S.C. § 1101(a)(43)(B),
and therefore does not qualify for sentence enhancement under
U.S.S.G. § 2L1.2. 127 S. Ct. at 629-33. As a result of this
decision, the government concedes that Mendoza’s enhanced
sentence was miscalculated. Nevertheless, the government
maintains that this appeal is moot because our precedent will not
permit this court to grant Mendoza any relief by way of re-
sentencing.
Mendoza served his three-year term of imprisonment and was
released July 31, 2006. He is still subject to the three-year
supervised release component of his sentence until approximately
July 31, 2009. On remand, Mendoza requests that this court vacate
his sentence and remand to the district court for resentencing.
We agree with both parties that, under the Supreme Court’s
holding in Lopez, Mendoza’s sentence was miscalculated. This
court’s recent decision in Rosenbaum, however, dictates that
Mendoza’s presumed deportation renders us unable to grant Mendoza
relief.
The facts in Rosenbaum are notably similar to those in the
case at bar. Like Mendoza, Rosenbaum had a prior conviction for
simple possession of a controlled substance and his sentence was
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enhanced under U.S.S.G. § 2L1.2. Rosenbaum, 483 F.3d at 382.
Rosenbaum served the full term of his imprisonment and was
subsequently deported, though he was subject to a supervised
release component at the time of his appeal. Id. at 383. The
Rosenbaum court concluded that under Rule 43 of the Federal Rules
of Criminal Procedure, re-sentencing requires that a defendant be
present and have the opportunity to allocute. Id. Thus
Rosenbaum’s deportation and inability to reenter the country
legally made his re-sentencing impossible, and Rosenbaum’s appeal
was ruled moot and dismissed. Id.
Mendoza argues that this court’s decision in United States
v. Lares-Meraz, 452 F.3d 352 (5th Cir. 2006), dictates a
different result. In Rosenbaum, however, we distinguished
Rosenbaum’s appeal from that presented in Lares. 483 F.3d at 383.
We explained that Lares did not seek re-sentencing because he
conceded that any sentencing error was harmless; thus he sought
no relief that the court could not grant. Id. As in Rosenbaum,
Mendoza is seeking relief by way of re-sentencing. Accordingly,
Mendoza’s case is distinguishable from Lares, and Rosenbaum
controls this appeal.
Mendoza further argues that Rosenbaum conflicts with the
Supreme Court’s decisions in United States v. Campos-Serrano, 404
U.S. 293 (1971), and Church of Scientology of California v.
United States, 506 U.S. 9 (1992). Rosenbaum was made in the face
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of both decisions and is controlling in this circuit. This court
may not overrule the judgment of another panel, absent an en banc
or intervening Supreme Court decision. Foster v. Quarterman, 466
F.3d. 359, 367-68 (5th Cir. 2006).
Finally, Mendoza maintains that he may waive his presence at
the re-sentencing hearing and allow this proceeding to move
forward in absentia. As we explained in Rosenbaum, this argument
is not compelling, because no such waiver has been presented to
the court and the possibility of a future waiver is speculative.
See Rosenbaum, 483 F.3d at 383.
We therefore DISMISS Mendoza’s appeal.
DISMISSED.
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