United States v. Palencia-Contreras , 246 F. App'x 862 ( 2007 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
No. 04-41366 F I L E D
Summary Calendar September 4, 2007
Charles R. Fulbruge III
Clerk
UNITED STATES OF AMERICA
Plaintiff-Appellee
v.
ARTURO PALENCIA-CONTRERAS, also known as Joaquin
Gonzalez-Hernandez
Defendant-Appellant
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 1:04-CR-322-ALL
ON REMAND FROM THE SUPREME COURT OF THE UNITED STATES
Before BENAVIDES, CLEMENT, and PRADO, Circuit Judges.
PER CURIAM:*
Arturo Palencia-Contreras (Palencia) appeals the sentence he received
following his guilty-plea conviction for illegal reentry, in violation of 8 U.S.C.
§ 1326. Palencia argues that the district court misapplied the Sentencing
Guidelines by characterizing his previous Texas felony conviction for possession
*
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should not be published and is not precedent except under the limited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. 04-41366
of a controlled substance as an aggravated felony under U.S.S.G.
§ 2L1.2(b)(1)(C). In a prior opinion, this court affirmed the sentence imposed.
See United States v. Palencia-Contreras, 141 Fed. App’x 342, 343 (5th Cir. 2005).
The Supreme Court granted certiorari, vacated this court’s judgment, and
remanded the case for further consideration in light of its intervening decision
in Lopez v. Gonzales, 127 S. Ct. 625 (2005).
Because Palencia has now completed the confinement portion of his
sentence, any argument that the term of incarceration should be reduced is
moot, and the only portion of the sentence remaining for consideration is his
term of supervised release. See United States v. Ramon, 320 F.3d 519, 519-20
(5th Cir. 2003); see also Johnson v. Pettiford, 442 F.3d 917, 918 (5th Cir. 2006).
Palencia, however, has been removed from the United States. Because he is
barred from returning to the United States and because there is no indication
that he has waived his right to be present for resentencing, Palencia's challenge
to the validity of his sentence is moot. See United States v. Rosenbaum-Alanis,
483 F.3d 381, 383 (5th Cir. 2007). Accordingly, the appeal is DISMISSED.
2