     Case: 13-10323       Document: 00512436568         Page: 1     Date Filed: 11/11/2013




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                                            FILED
                                                                        November 11, 2013
                                     No. 13-10323
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee

v.

JORGE BELTRAN-TORRES,

                                                  Defendant-Appellant


                   Appeal from the United States District Court
                        for the Northern District of Texas
                             USDC No. 5:12-CR-92-1


Before DAVIS, SOUTHWICK, and HIGGINSON, Circuit Judges.
PER CURIAM:*
       Jorge Beltran-Torres pled guilty to fraud in connection with an
immigration document and aiding and abetting. The district court sentenced
him to six months of imprisonment and a one-year term of supervised release.
Beltran-Torres has appealed, contending that the district court did not
adequately explain its reasons for imposing supervised release and that the
court failed to account for the advice in the Sentencing Guidelines that



       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
    Case: 13-10323    Document: 00512436568     Page: 2    Date Filed: 11/11/2013

                                 No. 13-10323

deportable aliens ordinarily should not be sentenced to terms of supervised
release.
      Beltran-Torres completed his sentence and was removed to Mexico in April
2013. He thus is no longer in the Bureau of Prisons custody, nor is there any
evidence he has returned to this country. The Federal Public Defender argues
that the appeal is not moot because Beltran-Torres seeks to challenge, as
improper under U.S.S.G. § 5D1.1(c), the imposition of a term of supervised
release. He maintains that under 28 U.S.C. § 2106, this court may offer relief
by striking the term of supervised release from the judgment without ordering
resentencing. He posits that the circumstances of this case lend themselves to
such action because Beltran-Torres was sentenced to an extremely limited term
and could not have appealed the sentence before he was deported.
      Beltran-Torres relies on a decision in which this court held that an appeal
whose relevant facts were similar to those here was not moot. See United States
v. Lares-Meraz, 452 F.3d 352 (5th Cir. 2006).       The only issue after that
defendant’s removal concerned the period of supervised release, but the defense
counsel conceded that any error in ordering supervision was harmless. Id. at
356. The court held that the issue was not moot, but it also held any error was
harmless; the court affirmed the conviction and sentence. Id.
      A later decision of this court distinguished Lares-Meraz by saying that the
earlier panel “was not faced with the prospect of resentencing the defendant
because defense counsel conceded that any sentencing error was harmless.”
United States v. Rosenbaum-Alanis, 483 F.3d 381, 383 (5th Cir. 2007). This
meant that the appellant was not seeking “any relief that the court could not
grant.” Id. Rosenbaum-Alanis, though, did not make that concession; instead
he was seeking to be resentenced. Id. Resentencing requires the presence of the
defendant before the court, but – as here – that defendant was barred from
reentering the country. Id. at 382; FED. R. CRIM. P. 43.
      The appeal is moot and is therefore DISMISSED.

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