IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
November 10, 2008
No. 07-51193
Summary Calendar Charles R. Fulbruge III
Clerk
UNITED STATES OF AMERICA
Plaintiff-Appellee
v.
JOSE JIMENEZ-HERRERA
Defendant-Appellant
Appeal from the United States District Court
for the Western District of Texas
USDC No. 2:07-CR-160-ALL
Before SMITH, STEWART, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
Jose Jimenez-Herrera pled guilty to illegal reentry after deportation. He
was sentenced to 18 months of imprisonment, to be followed by three years of
supervised release. On appeal, Jimenez-Herrera argues only that his prior state
conviction of possession of a controlled substance did not constitute an
aggravated felony. See U.S.S.G. § 2L1.2(b)(1)(C).
We do not reach the merits of the issue that he presents. Because
Jimenez-Herrera has prior to this date been released from federal custody and
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 07-51193
removed from the United States, he is subject only to an undischarged term of
supervised release. We cannot grant what he requests because resentencing
would require him to be present at a hearing to consider a new sentence; his
deportation creates a legal bar to such an appearance. United States v.
Rosenbaum-Alanis, 483 F.3d 381, 383 (5th Cir. 2007). This appeal has therefore
become moot.
The appeal is DISMISSED.
2