                                                     United States Court of Appeals
                                                              Fifth Circuit
                                                            F I L E D
                  UNITED STATES COURT OF APPEALS
                       For the Fifth Circuit                  May 8, 2007

                                                         Charles R. Fulbruge III
                                                                 Clerk

                          No. 06-40127
                       Conference Calendar




                    UNITED STATES OF AMERICA,


                                                Plaintiff-Appellee,


                              VERSUS


                     JOSE CONTRERAS-JIMENEZ,


                                               Defendant-Appellant,



          Appeal from the United States District Court
               For the Southern District of Texas
                         2:05-CR-587-ALL


    ON REMAND FROM THE SUPREME COURT OF THE UNITED STATES
Before DAVIS, SMITH and WIENER, Circuit Judges.

PER CURIAM:*

     The Appellant Jose Contreras-Jimenez (“Contreras”) pleaded

guilty to being illegally present in the United States following

deportation, in violation of 8 U.S.C. § 1326(a) & (b).   On December



     *
     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this opinion should not be published and is not precedent except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.
27, 2004, the district court sentenced him to serve 15 months in

the custody of the Bureau of Prisons followed by 3 years of

supervised release.

     Contreras       appealed        from    the    judgment     of    conviction           and

sentence, arguing that his prior conviction for possession of a

controlled substance was not an aggravated felony and challenging

the constitutionality of the sentencing enhancement he received

based on this finding.           We affirmed the judgment.1

     Contreras filed a timely petition for a writ of certiorari

with the United States Supreme Court.                       The Court granted the

petition, vacated our judgment, and remanded the case to this court

for further consideration in light of Lopez v. Gonzales.2

     In   Lopez,        the   Supreme       Court    held    that      a    state    felony

conviction for simple possession of a controlled substance that was

not punishable as a felony under the federal Controlled Substances

Act was not a “drug trafficking crime” under 18 U.S.C. § 924(c) and

hence not an “aggravated felony” under 8 U.S.C. § 1101(a)(43)(B).3

     Contreras argues that, in light of Lopez, his conviction for

possession     of   a    controlled         substance    does    not       qualify     as    an

aggravated felony because that crime was punishable only as a

misdemeanor     under     the    federal       Controlled       Substances       Act    and,


     1
      See United States v. Contreras-Jimenez, 195 F.App'x 271 (5th Cir. 2006).
     2
      127 S.Ct. 625 (2006).
     3
      Lopez, 127 S.Ct. At 629-633.

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accordingly, the district court erred in enhancing his sentence

based on the conviction.

     On remand, the parties advise that Contreras completed the

imprisonment component of his sentence and was deported to Mexico,

although his term of supervised release is ongoing.             Under these

circumstances, even assuming Lopez error, because the defendant has

been deported and is unable (without the permission of the Attorney

General)   to   reenter   the   United   States   and   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.4             The appeal is

therefore DISMISSED.




     4
     See United States v. Rosenbaum-Alanis, –-F.3d ---, 2007 WL
926832 (5th Cir. March 29, 2007).

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