United States v. Rebollar-Medina

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. 06-50727
Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

RAMON REBOLLAR-MEDINA, also known as Sergio Garcia-Aguilar,

Defendant-Appellant.

--------------------
Appeal from the United States District Court
for the Western District of Texas
USDC No. 3:05-CR-2723-ALL
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Before DeMOSS, STEWART and PRADO, Circuit Judges.

PER CURIAM:*

Ramon Rebollar-Medina (Rebollar) appeals his conviction and

sentence for illegal reentry following deportation. Rebollar

argues that the district court erred in characterizing his state

conviction for transporting cocaine as an aggravated felony under

U.S.S.G. § 2L1.2, but he states that his argument is moot in

light of his release from imprisonment. He also challenges the

constitutionality of 8 U.S.C. § 1326(b)’s treatment of prior

felony and aggravated felony convictions as sentencing factors

rather than elements of the offense that must be found by a jury

*
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this opinion should not be published and is not precedent except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. 06-50727
-2-

in light of Apprendi v. New Jersey, 530 U.S. 466 (2000), but

acknowledges that this argument is foreclosed in light of

Almendarez-Torres v. United States, 523 U.S. 224, 235 (1998).

The Government has filed a motion for summary affirmance,

arguing that Rebollar’s appeal is moot and foreclosed. Both

parties have informed this court that Rebollar has been released

from prison and has been deported.

In United States v. Rosenbaum-Alanis, ___ F.3d ___, No. 05-

41400, 2007 WL 926832, *1-2 (5th Cir. 2007), we held that an

appellant’s challenge to the characterization of a state offense

as an aggravated felony under § 2L1.2 was moot when the appellant

had completed his term of imprisonment and had been deported.

Accordingly, Rebollar’s argument in this regard is moot. See

Rosenbaum-Alanis, 2007 WL 926832 at *2. As such, the

Government’s motion is denied in part, and Rebollar’s appeal is

dismissed in part as moot.

Additionally, Rebollar’s challenge to § 1326(b) is

foreclosed in light of Almendarez-Torres. The Government’s

motion for summary affirmance is granted in part, and the

judgment of the district court is affirmed in part.

MOTION GRANTED IN PART and DENIED IN PART; APPEAL DISMISSED

IN PART; JUDGMENT AFFIRMED IN PART.