     Case: 17-40381      Document: 00514343907         Page: 1    Date Filed: 02/09/2018




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                         United States Court of Appeals
                                                                                  Fifth Circuit
                                    No. 17-40381                                FILED
                                  Summary Calendar                       February 9, 2018
                                                                           Lyle W. Cayce
                                                                                Clerk
Consolidated with 17-40385

UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

PEDRO PEREZ-HERNANDEZ,

                                                 Defendant-Appellant



                  Appeals from the United States District Court
                       for the Southern District of Texas
                            USDC No. 1:15-CR-775-1
                            USDC No. 1:14-CR-867-1


Before DAVIS, CLEMENT and COSTA, Circuit Judges.
PER CURIAM: *
       In 2012, Pedro Perez-Hernandez, who at that time was a legal
permanent resident of the United States, pleaded guilty to being a felon in
possession of a firearm and was sentenced to 46 months of imprisonment 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
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                                  No. 17-40381
                                c/w No. 17-40385
three years of supervised release. After being deported pursuant to 8 U.S.C. §
1227(a)(2)(C), and while still on supervised release for the firearm offense,
Perez-Hernandez was found in the United States and charged with being an
alien unlawfully in the United States, in violation of 8 U.S.C. § 1326(a), (b)(1).
Probation officers also petitioned to revoke the supervised release due to his
illegal reentry in the United States. A jury convicted Perez-Hernandez of
illegal reentry, and the court sentenced him to 24 months of imprisonment and
three years of supervised release. Relying on the guilty verdict for illegal
reentry, the court revoked Perez-Hernandez’s supervised release as to the
firearm offense and sentenced him to four additional months of imprisonment
and no additional term of supervised release.          Perez-Hernandez timely
appealed both cases, which have been consolidated on appeal.
      In his sole assignment of error with respect to his illegal reentry
conviction, Perez-Hernandez contends that the district court used his
uncounseled deportation proceedings to impose an eighteen-month sentencing
enhancement, in violation of the Sixth Amendment and the Due Process
Clause. Because Perez-Hernandez did not raise this issue in the district court,
it is subject to plain error review. See Puckett v. United States, 556 U.S. 129,
135 (2009). To show plain error, Perez-Hernandez must show a forfeited error
that is clear or obvious and that affected his substantial rights. See id.
      Perez-Hernandez’s “enhancement” argument is an attack on the
prosecutor’s decision to charge him with violating § 1326, rather than 8 U.S.C.
§ 1325, in light of his prior deportation. However, “so long as the prosecutor
has probable cause to believe that the accused committed an offense defined
by statute, the decision whether or not to prosecute, and what charge to file or
bring before a grand jury, generally rests entirely in his discretion.”
Bordenkircher v. Hayes, 434 U.S. 357, 364 (1978) (internal citation omitted).



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                                  No. 17-40381
                                c/w No. 17-40385
Furthermore, a jury found Perez-Hernandez guilty of a violation of § 1326, and
the district court sentenced him accordingly. Therefore, Perez-Hernandez has
not shown that the district court committed any error, plain or otherwise. See
Puckett, 556 U.S. at 135.
      Perez-Hernandez raises three issues with respect to the revocation of his
supervised release.   However, during the pendency of this appeal, Perez-
Hernandez was released from custody. This court should always be cognizant
of jurisdiction and should examine the issue sua sponte if needed. Mosley v.
Cozby, 813 F.2d 659, 660 (5th Cir. 1987); see Bailey v. Southerland, 821 F.2d
277, 278 (5th Cir. 1987). Under Article III’s case-or-controversy requirement,
“some concrete and continuing injury other than the now-ended incarceration
or parole—some collateral consequence of the conviction—must exist if the suit
is to be maintained.”       Spencer v. Kemna, 523 U.S. 1, 7 (1998) (internal
quotation marks and citation omitted).
      Because the district court did not impose an additional term of
supervised release upon revocation, Perez-Hernandez does not face a collateral
consequence based on any additional term of supervised release. See id. at 7;
United States v. Clark, 193 F.3d 845, 847-48 (5th Cir. 1999). Further, Perez-
Hernandez does not demonstrate any other “concrete and continuing injury
other than the now-ended” term of imprisonment with respect to the
revocation. Spencer, 523 U.S. at 7; see Clark, 193 F.3d at 847 (holding that the
defendant has the burden of showing collateral consequences).
      Accordingly, Perez-Hernandez’s sentence imposed following his illegal
reentry conviction is AFFIRMED, and his appeal from the revocation of his
supervised release relating to his firearm offense is DISMISSED as moot.




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