                                                        United States Court of Appeals
                                                                 Fifth Circuit
                                                                F I L E D
                IN THE UNITED STATES COURT OF APPEALS
                         FOR THE FIFTH CIRCUIT                    July 10, 2007

                                                             Charles R. Fulbruge III
                        _______________________                      Clerk

                             No. 04-40672
                           Summary Calendar

                        _______________________


UNITED STATES OF AMERICA,

                                       Plaintiff-Appellee,

versus

CECILIO MENDOZA-TORRES,

                                       Defendant-Appellant.

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             Appeal from the United States District Court
                   for the Southern District of Texas
                           No. 5:04-CR-20-ALL
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         ON REMAND FROM THE SUPREME COURT OF THE UNITED STATES


Before SMITH, GARZA, and PRADO, Circuit Judges.

PER CURIAM:*

     This court previously affirmed the conviction and sentence

of Appellant Cecilio Mendoza-Torres (“Mendoza”). On December 11,

2006, the Supreme Court vacated that judgment and remanded the



     *
       Pursuant to 5TH CIRCUIT RULE 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that this opinion should not be published and is not precedent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 CIRCUIT
RULE 47.5.4.

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case for our reconsideration in light of its decision in Lopez v.

Gonzales, 127 S. Ct. 625 (2006). On remand and following this

court’s decision in United States v. Rosenbaum-Alanis, 483 F.3d

381 (5th Cir. 2006), we hold that Mendoza’s release from prison

and presumed subsequent deportation render us incapable of

granting him the relief he seeks. We therefore dismiss the appeal

as moot.

     On February 19, 2004, Mendoza pleaded guilty to the

violation of 8 U.S.C. § 1326(b)(2), which forbids the re-entry of

deported aliens whose removal was subsequent to a conviction for

the commission of an aggravated felony. Because Mendoza was

previously convicted of possession of cocaine, an aggravated

felony under Texas law, the district court enhanced his sentence

by eight levels pursuant to U.S.S.G. § 2L1.2. Mendoza was

sentenced to three years imprisonment and three years of

supervised release.

     Mendoza appealed to this court, contending that the district

court’s application of the Sentencing Guidelines was in error and

challenging the constitutionality of 8 U.S.C. § 1326(b). Our

precedent foreclosed both claims, and we affirmed the district

court’s decision on August 15, 2005. See United States v.

Mendoza-Torres, 145 Fed. Appx. 888 (5th Cir. 2005).   The United

States Supreme Court granted certiorari and, in light of its

recent opinion in Lopez, remanded the case to this court for



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reconsideration.

     In Lopez, the Supreme Court ruled that a state felony

conviction for mere possession of a controlled substance does not

amount to an aggravated felony under 8 U.S.C. § 1101(a)(43)(B),

and therefore does not qualify for sentence enhancement under

U.S.S.G. § 2L1.2. 127 S. Ct. at 629-33. As a result of this

decision, the government concedes that Mendoza’s enhanced

sentence was miscalculated.   Nevertheless, the government

maintains that this appeal is moot because our precedent will not

permit this court to grant Mendoza any relief by way of re-

sentencing.

     Mendoza served his three-year term of imprisonment and was

released July 31, 2006.   He is still subject to the three-year

supervised release component of his sentence until approximately

July 31, 2009. On remand, Mendoza requests that this court vacate

his sentence and remand to the district court for resentencing.

We agree with both parties that, under the Supreme Court’s

holding in Lopez, Mendoza’s sentence was miscalculated. This

court’s recent decision in Rosenbaum, however, dictates that

Mendoza’s presumed deportation renders us unable to grant Mendoza

relief.

     The facts in Rosenbaum are notably similar to those in the

case at bar. Like Mendoza, Rosenbaum had a prior conviction for

simple possession of a controlled substance and his sentence was


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enhanced under U.S.S.G. § 2L1.2. Rosenbaum, 483 F.3d at 382.

Rosenbaum served the full term of his imprisonment and was

subsequently deported, though he was subject to a supervised

release component at the time of his appeal. Id. at 383. The

Rosenbaum court concluded that under Rule 43 of the Federal Rules

of Criminal Procedure, re-sentencing requires that a defendant be

present and have the opportunity to allocute. Id. Thus

Rosenbaum’s deportation and inability to reenter the country

legally made his re-sentencing impossible, and Rosenbaum’s appeal

was ruled moot and dismissed. Id.

     Mendoza argues that this court’s decision in United States

v. Lares-Meraz, 452 F.3d 352 (5th Cir. 2006), dictates a

different result. In Rosenbaum, however, we distinguished

Rosenbaum’s appeal from that presented in Lares. 483 F.3d at 383.

We explained that Lares did not seek re-sentencing because he

conceded that any sentencing error was harmless; thus he sought

no relief that the court could not grant. Id. As in Rosenbaum,

Mendoza is seeking relief by way of re-sentencing. Accordingly,

Mendoza’s case is distinguishable from Lares, and Rosenbaum

controls this appeal.

     Mendoza further argues that Rosenbaum conflicts with the

Supreme Court’s decisions in United States v. Campos-Serrano, 404

U.S. 293 (1971), and Church of Scientology of California v.

United States, 506 U.S. 9 (1992). Rosenbaum was made in the face


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of both decisions and is controlling in this circuit. This court

may not overrule the judgment of another panel, absent an en banc

or intervening Supreme Court decision. Foster v. Quarterman, 466

F.3d. 359, 367-68 (5th Cir. 2006).

     Finally, Mendoza maintains that he may waive his presence at

the re-sentencing hearing and allow this proceeding to move

forward in absentia. As we explained in Rosenbaum, this argument

is not compelling, because no such waiver has been presented to

the court and the possibility of a future waiver is speculative.

See Rosenbaum, 483 F.3d at 383.

     We therefore DISMISS Mendoza’s appeal.

     DISMISSED.




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