                                                             United States Court of Appeals
                                                                      Fifth Circuit
                                                                   F I L E D
                     UNITED STATES COURT OF APPEALS
                                                                    April 13, 2007
                            FOR THE FIFTH CIRCUIT
                                                               Charles R. Fulbruge III
                                                                       Clerk

                                No. 05-40020
                              Summary Calendar



                        UNITED STATES OF AMERICA,

                                                      Plaintiff-Appellee,

                                   VERSUS

                       MARGARITO PECENO-MONTANEZ,

                                                     Defendant-Appellant.



             Appeal from the United States District Court
              For the Southern District of Texas, Laredo
                       USDC No. 5:04-CR-1414-ALL


         ON REMAND FROM THE SUPREME COURT OF THE UNITED STATES

Before JONES, Chief Judge, and BARKSDALE and BENAVIDES, Circuit
Judges.

PER CURIAM:*

             This   court   previously   affirmed    the   conviction      and

sentence of the Appellant Margarito Peceno-Montanez (“Montanez”).

On December 11, 2006, the Supreme Court vacated and remanded the

case for reconsideration in light of Lopez v. Gonzalez, 127 S. Ct.

625 (2006).




     *
            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opinion should not be published and is not precedent except under the limited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.
          In light of Lopez, the district court erred by enhancing

Montanez’s   sentence      based   on   a     Texas    conviction      for   simple

possession   of   a   controlled    substance.          Because     Montanez     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, Montanez

presumably has been deported.               In order to resentence him and

reduce his   term     of   supervised       release,    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 Montanez and

his appeal   is   moot.      See   United      States    v.   Rosenbaum-Alanis,

No. 05-41400, 2007 WL 926832 (5th Cir. March 29, 2007).                 The appeal

is therefore DISMISSED.




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