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

                                                           Charles R. Fulbruge III
                                                                   Clerk
                              No. 04-20299
                          Conference Calendar



UNITED STATES OF AMERICA

                       Plaintiff - Appellee

     v.

JUAN GUARDADO-ORTEGA, also known as Jorge Guardado-Ortega

                       Defendant - Appellant



             Appeal from the United States District Court
                  for the Southern District of Texas
                          No. 4:03-CR-438-ALL


         ON REMAND FROM THE SUPREME COURT OF THE UNITED STATES

Before KING, DeMOSS, and CLEMENT, Circuit Judges.

PER CURIAM:*

     The Supreme Court vacated our judgment in this case and

remanded for further consideration in light of Lopez v. Gonzales,

127 S. Ct. 625 (2006).     On remand, we conclude that the

defendant-appellant’s appeal is now moot as a result of his

release from prison and subsequent deportation, and we dismiss

his appeal.



     *
       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this opinion should not be published and is not precedent except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.
     Defendant-appellant Juan Guardado-Ortega (“Guardado”) was

convicted, pursuant to a guilty plea, of use of a nonimmigrant

visa obtained by fraud and illegal reentry following deportation

subsequent to a conviction for an aggravated felony.    The prior

convictions that were deemed aggravated felonies were California

convictions for possession of cocaine and possession of a

controlled substance.    On appeal, Guardado argued that the

district court improperly applied an eight-level enhancement

under section 2L1.2(b)(1)(C) of the United States Sentencing

Guidelines because his prior convictions were not aggravated-

felony convictions.   We determined that his argument was

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

(5th Cir. 1997), and affirmed.    See United States v. Guardado-

Ortega, 115 F. App’x 288, 289 (5th Cir. 2004) (per curiam)

(unpublished opinion).    The Supreme Court granted certiorari,

vacated our judgment, and remanded the case for further

consideration in light of United States v. Booker, 543 U.S. 220

(2005).   See Vences v. United States, 544 U.S. 1013 (2005).

Concluding that Guardado had not demonstrated plain error under

Booker, we again affirmed.     See United States v. Guardado-Ortega,

150 F. App’x 302, 303 (5th Cir. 2005) (per curiam) (unpublished

opinion).   The Supreme Court again granted certiorari, vacated

our judgment, and remanded the case for further consideration,

this time in light of Lopez.     See Mendoza-Torres v. United

States, 127 S. Ct. 826 (2006).

                                 -2-
     On remand, the parties alert us to the fact that Guardado

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 Guardado’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, Guardado 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 Guardado’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

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.

                                -3-
               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, Guardado’s appeal is DISMISSED as moot.




                               -4-
