United States v. Guardado-Ortega , 225 F. App'x 227 ( 2007 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT April 10, 2007
Charles R. Fulbruge III
Clerk
No. 04-20299
Conference Calendar
UNITED STATES OF AMERICA
Plaintiff - Appellee
v.
JUAN GUARDADO-ORTEGA, also known as Jorge Guardado-Ortega
Defendant - Appellant
Appeal from the United States District Court
for the Southern District of Texas
No. 4:03-CR-438-ALL
ON REMAND FROM THE SUPREME COURT OF THE UNITED STATES
Before KING, DeMOSS, and CLEMENT, Circuit Judges.
PER CURIAM:*
The Supreme Court vacated our judgment in this case and
remanded for further consideration in light of Lopez v. Gonzales,
127 S. Ct. 625 (2006). On remand, we conclude that the
defendant-appellant’s appeal is now moot as a result of his
release from prison and subsequent deportation, and we dismiss
his appeal.
*
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this opinion should not be published and is not precedent except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.
Defendant-appellant Juan Guardado-Ortega (“Guardado”) was
convicted, pursuant to a guilty plea, of use of a nonimmigrant
visa obtained by fraud and illegal reentry following deportation
subsequent to a conviction for an aggravated felony. The prior
convictions that were deemed aggravated felonies were California
convictions for possession of cocaine and possession of a
controlled substance. On appeal, Guardado argued that the
district court improperly applied an eight-level enhancement
under section 2L1.2(b)(1)(C) of the United States Sentencing
Guidelines because his prior convictions were not aggravated-
felony convictions. We determined that his argument was
foreclosed by United States v. Hinojosa-Lopez, 130 F.3d 691, 694
(5th Cir. 1997), and affirmed. See United States v. Guardado-
Ortega, 115 F. App’x 288, 289 (5th Cir. 2004) (per curiam)
(unpublished opinion). The Supreme Court granted certiorari,
vacated our judgment, and remanded the case for further
consideration in light of United States v. Booker, 543 U.S. 220
(2005). See Vences v. United States, 544 U.S. 1013 (2005).
Concluding that Guardado had not demonstrated plain error under
Booker, we again affirmed. See United States v. Guardado-Ortega,
150 F. App’x 302, 303 (5th Cir. 2005) (per curiam) (unpublished
opinion). The Supreme Court again granted certiorari, vacated
our judgment, and remanded the case for further consideration,
this time in light of Lopez. See Mendoza-Torres v. United
States, 127 S. Ct. 826 (2006).
-2-
On remand, the parties alert us to the fact that Guardado
has completed the confinement portion of his sentence and has
apparently been deported from the United States, although his
term of supervised release is ongoing. A condition of Guardado’s
supervised release is that he not illegally reenter the United
States during the term of his supervised release. Thus, assuming
arguendo that there is Lopez error, Guardado is prohibited from
reentering the United States (without permission from the
Attorney General) to be present for a resentencing proceeding
before the district court. But Rule 43 of the Federal Rules of
Criminal Procedure requires Guardado’s presence at resentencing.
This court recently addressed the status of an appeal with
nearly identical circumstances in another case remanded by the
Supreme Court in light of Lopez. In United States v. Rosenbaum-
Alanis, we concluded that such an appeal was moot because there
was no relief we could grant the defendant. No. 05-41400, 2007
WL 926832, at *1-2 (5th Cir. Mar. 29, 2007). We reasoned:
Because Rosenbaum has completed the
confinement portion of his sentence, any
argument that the prison term should be
reduced is moot and the only portion of the
sentence remaining for consideration is the
defendant’s term of supervised release. In
order to resentence the defendant to correct
any error in the defendant’s term of
supervised release, Federal Rule of Criminal
Procedure 43 requires the defendant to be
present and have the opportunity to allocute.
Both parties advise, however, that the
defendant has completed his term of
imprisonment and has been deported.
-3-
Because the defendant has been deported
to the Republic of Mexico and is legally
unable, without permission of the Attorney
General, to reenter the United States to be
present for a resentencing proceeding as
required by Rule 43, there is no relief we are
able to grant him and his appeal is moot.
Id. at *1-2.
Rosenbaum-Alanis controls our decision in this case.
Accordingly, Guardado’s appeal is DISMISSED as moot.
-4-