USA v. Jimenez-Herrera, No. 07-51193 (5th Cir. 2008)

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IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED No. 07-51193 Summary Calendar November 10, 2008 Charles R. Fulbruge III Clerk UNITED STATES OF AMERICA Plaintiff-Appellee v. JOSE JIMENEZ-HERRERA Defendant-Appellant Appeal from the United States District Court for the Western District of Texas USDC No. 2:07-CR-160-ALL Before SMITH, STEWART, and SOUTHWICK, Circuit Judges. PER CURIAM:* Jose Jimenez-Herrera pled guilty to illegal reentry after deportation. He was sentenced to 18 months of imprisonment, to be followed by three years of supervised release. On appeal, Jimenez-Herrera argues only that his prior state conviction of possession of a controlled substance did not constitute an aggravated felony. See U.S.S.G. § 2L1.2(b)(1)(C). We do not reach the merits of the issue that he presents. Because Jimenez-Herrera has prior to this date been released from federal custody and * 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 07-51193 removed from the United States, he is subject only to an undischarged term of supervised release. We cannot grant what he requests because resentencing would require him to be present at a hearing to consider a new sentence; his deportation creates a legal bar to such an appearance. United States v. Rosenbaum-Alanis, 483 F.3d 381, 383 (5th Cir. 2007). This appeal has therefore become moot. The appeal is DISMISSED. 2

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