IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
August 14, 2008
No. 06-51609 Charles R. Fulbruge III
Clerk
UNITED STATES OF AMERICA
Plaintiff-Appellee
v.
ALDEGUNDO GARCIA-HERRERA
Defendant-Appellant
Appeal from the United States District Court
for the Western District of Texas
USDC No. 2:06-CR-668
Before JOLLY, CLEMENT, and OWEN, Circuit Judges.
PER CURIAM:*
The opinion issued in this case on July 14, 2008, is withdrawn and this
revised opinion is substituted therefor.
Aldegundo Garcia-Herrera (Garcia) appeals the sentence he received for
violating 8 U.S.C. § 1326(a) by illegally reentering the United States after
previously being removed. Garcia initially argued that his three-year term of
supervised release exceeds the maximum one-year term authorized by the illegal
reentry statute because he is not subject to the enhanced penalty authorized by
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
No. 06-51609
8 U.S.C. § 1326(b)(2). However, the parties have now informed the Court that
while Garcia’s appeal was pending and within the first year of his term of
supervised release, the district court revoked Garcia’s term of supervised release
and sentenced him to eight months of imprisonment. The district court was
authorized to “require the defendant to serve in prison all or part of the term of
supervised release authorized by statute for the offense that resulted in such
term of supervised release without credit for time previously served on
postrelease supervision.” 18 U.S.C. § 3583(e)(3). Because Garcia’s supervised
release was revoked within the first year of his term of supervised release, and
because Garcia received a revocation sentence of less than one year, he is not
suffering any direct or collateral consequences from the erroneously imposed
three-year term of supervised release. See Spencer v. Kemma, 523 U.S. 1, 7
(1998) (noting that the case-or-controversy requirement demands that “some
concrete and continuing injury other than the now-ended incarceration or
parole—some ‘collateral consequence’ of the conviction—must exist if the suit is
to be maintained”). Thus, as all parties to this appeal now agree, the issue
presented by Garcia’s appeal is moot. We therefore dismiss Garcia’s appeal for
lack of jurisdiction.
APPEAL DISMISSED AS MOOT.
2