                                                         United States Court of Appeals
                                                                  Fifth Circuit
                                                               F I L E D
                 IN THE UNITED STATES COURT OF APPEALS
                         FOR THE FIFTH CIRCUIT                  April 16, 2007

                                                           Charles R. Fulbruge III
                                                                   Clerk
                             No. 05-40024
                           Summary Calendar



UNITED STATES OF AMERICA

                       Plaintiff - Appellee

     v.

FRANCISCO JAVIER LOZANO-MIRELES

                       Defendant - Appellant



             Appeal from the United States District Court
                  for the Southern District of Texas
                          No. 5:04-CR-1171-1


         ON REMAND FROM THE SUPREME COURT OF THE UNITED STATES

Before KING, SMITH, and GARZA, Circuit Judges.

PER CURIAM:*

     In a previous opinion in this case, we affirmed the

conviction of defendant-appellant Francisco Javier Lozano-Mireles

(“Lozano”) but vacated his sentence and remanded for

resentencing.     See United States v. Lozano-Mireles, 161 F. App’x

432, 433 (5th Cir. 2006) (per curiam) (unpublished opinion).           On

December 11, 2006, the Supreme Court vacated our judgment 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this opinion should not be published and is not precedent except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.
remanded the case to us for further consideration in light of

Lopez v. Gonzales, 127 S. Ct. 625 (2006).    See Gutierrez-Tovar v.

United States, 127 S. Ct. 828 (2006).    On remand, we conclude

that Lozano’s appeal is now moot as a result of his release from

prison and subsequent deportation, and we dismiss his appeal.

     Lozano was convicted of being found knowingly and unlawfully

present in the United States after a previous deportation in

violation of 8 U.S.C. § 1326.   Applying the then-mandatory

version of the United States Sentencing Guidelines (“U.S.S.G.” or

“Guidelines”), the district court calculated Lozano’s total

offense level as thirteen and his criminal-history category as

III, yielding a sentencing range of eighteen to twenty-four

months’ imprisonment.   The court’s calculation of Lozano’s total

offense level included an eight-level enhancement pursuant to

U.S.S.G. § 2L1.2(b)(1)(C) for a prior aggravated-felony

conviction; Lozano’s prior conviction was a Florida felony

conviction for cocaine possession.    The district court imposed a

sentence of eighteen months’ imprisonment and three years’

supervised release.

     On appeal, Lozano argued (1) that his sentence was imposed

in violation of United States v. Booker, 543 U.S. 220 (2005);

(2) that the eight-level Guidelines enhancement for a prior

aggravated-felony conviction was improper; and (3) that the

“felony” and “aggravated felony” provisions of § 1326(b)(1) and

(2) were unconstitutional facially and as applied.   We rejected

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Lozano’s third argument as foreclosed by Almendarez-Torres v.

United States, 523 U.S. 224, 235 (1998), and consequently we

affirmed his conviction.   We also rejected his second argument as

foreclosed by United States v. Hinojosa-Lopez, 130 F.3d 691, 694

(5th Cir. 1997).   But concluding that the district court erred by

sentencing Lozano pursuant to a mandatory Guidelines scheme, we

vacated his sentence and remanded for resentencing.   The Supreme

Court granted certiorari, vacated our judgment, and remanded the

case for further consideration in light of Lopez.

     On remand, the parties alert us to the fact that Lozano has

completed the confinement portion of his sentence and has

apparently been deported from the United States, although his

term of supervised release is ongoing.   A condition of Lozano’s

supervised release is that he not illegally reenter the United

States during the term of his supervised release.   Thus, assuming

arguendo that there is Lopez error, Lozano is prohibited from

reentering the United States (without permission from the

Attorney General) to be present for a resentencing proceeding

before the district court.   But Rule 43 of the Federal Rules of

Criminal Procedure requires Lozano’s presence at resentencing.

     This court recently addressed the status of an appeal with

nearly identical circumstances in another case remanded by the

Supreme Court in light of Lopez.   In United States v. Rosenbaum-

Alanis, we concluded that such an appeal was moot because there

was no relief we could grant the defendant.   No. 05-41400, 2007

                                -3-
WL 926832, at *1-2 (5th Cir. Mar. 29, 2007).   We reasoned:

               Because Rosenbaum 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.    In
          order to resentence the defendant to correct
          any   error  in   the  defendant’s   term  of
          supervised release, Federal Rule of Criminal
          Procedure 43 requires the defendant to be
          present and have the opportunity to allocute.

               Both parties advise, however, that the
          defendant   has   completed   his   term of
          imprisonment and has been deported.

               Because the defendant has been deported
          to the Republic of Mexico and is legally
          unable, without permission of the Attorney
          General, to reenter the United States to 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.

Id. at *1-2.

     Rosenbaum-Alanis controls our decision in this case.

Accordingly, Lozano’s appeal is DISMISSED as moot.




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