United States v. Loredo-Pecina

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT June 13, 2007
Charles R. Fulbruge III
Clerk
No. 04-40440
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
GABRIEL LOREDO-PECINA,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. 1:03-CR-976-ALL
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ON REMAND FROM THE SUPREME COURT OF THE UNITED STATES
Before KING, DeMOSS, and CLEMENT, Circuit Judges.
PER CURIAM:*
This court affirmed the sentence of Gabriel Loredo-Pecina
(Loredo). United States v. Loredo-Pecina, 149 F. App’x 312 (5th
Cir. 2005). The Supreme Court vacated and remanded for further
consideration in light of Lopez v. Gonzales, 127 S. Ct. 625(2006). Mendoza-Torres v. United States, 127 S. Ct. 826 (2006).
Loredo argues that his prior Texas felony conviction for
possession of a controlled substance does not qualify as an
aggravated felony under U.S.S.G. § 2L1.2, in light of Lopez. He
*
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this opinion should not be published and is not precedent except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. 04-40440
-2-
also contends that his appeal is not moot despite his release
from imprisonment and subsequent deportation.
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.
The court could not grant relief because the defendant was barred
from entering the United States, and therefore could not be
resentenced. Rosenbaum-Alanis, 2007 WL 926832 at *2. Because
Loredo is barred from entering the United States and cannot be
present for a resentencing proceeding as required by FED. R. CRIM.
P. 43, we cannot grant his request to be resentenced. See id.Accordingly, Loredo’s appeal is DISMISSED as moot.