U.S. v. Rivera-Alvarez

Full title: UNITED STATES of America, Plaintiff-Appellee v. Elias RIVERA-ALVAREZ…

Court: United States Court of Appeals, Fifth Circuit

Date published: May 17, 2007

228 F. App'x 483 (5th Cir. 2007)

Opinion

No. 06-40278 Conference Calendar.

May 17, 2007.

James Lee Turner, Assistant U.S. Attorney, Jeffery Alan Babcock, U.S. Attorney's Office, Southern District of Texas, Houston, TX, for Plaintiff-Appellee.

Marjorie A. Meyers, Federal Public Defender, Philip G. Gallagher, Federal Public Defender's Office, Southern District of Texas, Houston, TX, for Defendant-Appellant.

Appeal from the United States District Court for the Southern District of Texas (05-CR-459).

Before JOLLY, DeMOSS, and STEWART, Circuit Judges.

ON REMAND FROM THE SUPREME COURT OF THE UNITED STATES

PER CURIAM:[fn*] [fn*] Pursuant to 5TH OR. R. 47.5, the Court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH OR R. 47.5.4.

This court previously affirmed the conviction and sentence of the Appellant, Elias Rivera-Alvarez ("Rivera"). United States v. Rivera-Alvarez, 202 Fed.Appx. 830 (5th Cir. 2006). The Supreme Court vacated and remanded the case for reconsideration in the light of Lopez v. Gonzales, ___ U.S. ___, 127 S.Ct. 625, 166 L.Ed.2d 462 (2006). Ochoa-Perez v. United States, ___ U.S. ___, 127 S.Ct. 1263, 167 L.Ed.2d 66 (2007). Following the Supreme Court's remand, we requested and received supplemental letter briefs from both parties with respect to the impact of Lopez.

In the light of Lopez, the district court erred by enhancing Rivera's sentence based on his Texas conviction for possession of cocaine. Because Rivera has completed service of his term of imprisonment and was released by the Bureau of Prisons on August 31, 2006, any argument that the sentence of imprisonment should be reduced is moot and the only portion of the sentence remaining for consideration is Rivera's term of supervised release.

However, as both parties noted in their supplemental letter briefs, Rivera presumably has been deported. In order to resentence him and reduce his term of supervised release, Federal Rule of Criminal Procedure 43 requires the defendant to be present and have the opportunity to allocute. Because Rivera 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, there is no relief we are able to grant Rivera and his appeal is moot. See United States v. Rosenbaum-Alanis, 483 F.3d 381 (5th Cir. 2007). Rivera asserts that Rosenbaum-Alanis was wrongly decided, and wishes to preserve the issue for further review. Nevertheless, for purposes of this appeal, it remains binding precedent. Accordingly, the appeal is

DISMISSED.