USA v. Lumbreras-Linares, No. 05-40747 (5th Cir. 2007)
Annotate this CaseThis opinion or order relates to an opinion or order originally issued on April 11, 2006.
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United States Court of Appeals Fifth Circuit F I L E D UNITED STATES COURT OF APPEALS April 16, 2007 FOR THE FIFTH CIRCUIT Charles R. Fulbruge III Clerk No. 05-40747 UNITED STATES OF AMERICA, Plaintiff-Appellee, VERSUS RODOLFO MANUEL LUMBRERAS-LINERAS, Defendant-Appellant. Appeal from the United States District Court For the Southern District of Texas, Laredo USDC No. 5:04-CR-2475-1 ON REMAND FROM THE SUPREME COURT OF THE UNITED STATES Before JONES, Chief Judge, and JOLLY and DAVIS, Circuit Judges. PER CURIAM:* This sentence of court the previously Appellant affirmed Rodolfo the Manuel conviction and Lumbreras-Lineras ( Lineras ). On December 11, 2006, the Supreme Court vacated and remanded case the for reconsideration in light of Lopez v. Gonzalez, 127 S. Ct. 625 (2006). In light of Lopez, the district court erred by enhancing Lineras s sentence based on a Texas conviction for possession of * 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. marijuana. Because Lineras 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. However, as the Federal Public Defender notes, Lineras presumably has been deported. In order to resentence him and reduce his release, term of supervised FEDERAL RULE OF CRIMINAL PROCEDURE 43 requires the defendant to be present and have the opportunity to allocute. Because the defendant 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 Lineras and his appeal is moot. See United States v. Rosenbaum-Alanis, No. 05-41400, 2007 WL 926832 (5th Cir. March 29, 2007). is therefore DISMISSED. 2 The appeal
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