                                                         United States Court of Appeals
                                                                  Fifth Circuit
                                                               F I L E D
                    UNITED STATES COURT OF APPEALS
                         FOR THE FIFTH CIRCUIT                   May 15, 2007

                                                           Charles R. Fulbruge III
                                                                   Clerk
                              No. 06-40111
                          Conference Calendar


                       UNITED STATES OF AMERICA,

                                                   Plaintiff-Appellee,

                                VERSUS


                         ALFONSO ROCHA-GAYTAN

                                                Defendant-Appellant.



             Appeal from the United States District Court
                  for the Southern District of Texas
                           (2:05-CR-594-ALL)
         ON REMAND FROM THE SUPREME COURT OF THE UNITED STATES
Before JOLLY, DeMOSS, and STEWART, Circuit Judges.

PER CURIAM:*

     This court previously affirmed the conviction and sentence of

appellant, Alfonso Rocha-Gaytan. United States v. Rocha-Gaytan, 202

F. App’x    827 (5th Cir. 2006). On March 30, 2007, the Supreme Court

vacated our judgment in this case and remanded the case to this

court for further consideration in light of Lopez v. Gonzales, 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opinion should not be published and is not precedent except under the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.
     Following the Supreme Court’s remand we received supplemental

letter briefs from both parties with respect to the impact of

Lopez. The government concedes, and we agree that, under Lopez, the

district court erred in imposing an eight-level enhancement for

Appellant’s prior controlled substance conviction. In light of this

error, the issue on appeal is whether we should vacate the sentence

and remand for resentencing or whether the appeal is now moot.

     The   parties   agree   that    Rocha-Gaytan    has    completed    the

confinement   portion   of   his   sentence   and   has    apparently   been

deported from the United States, although he remains subject to the

terms of his supervised release. This Court recently found a

similar case moot when the appellant had already been released from

prison and deported. See United States v. Rosenbaum-Alanis, __ F.3d

__, No. 05-41400, 2007 WL 926832 (5th Cir. Mar. 29, 2007). Because

the defendant in Rosenbaum-Alanis was barred from entering the

United States, and therefore could not be resentenced, the Court

could not grant the relief requested. Id. at *2.

     We find Rosenbaum-Alanis controlling, and because Rocha-Gaytan

is barred from entering the United States, we cannot grant his

request to be resentenced. Rocha-Gaytan recognizes this precedent

and wishes to preserve the issue for further review.

The appeal is moot and therefore DISMISSED.
