     Case: 10-40366     Document: 00511549882         Page: 1     Date Filed: 07/25/2011




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

                                                                            FILED
                                                                            July 25, 2011
                                     No. 10-40366
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff–Appellee,

v.

RENE MANUEL LOPEZ,

                                                  Defendant–Appellant.


                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 1:07-CR-751-2


Before WIENER, PRADO, and OWEN, Circuit Judges.
PER CURIAM:*
        Rene Manuel Lopez appeals the sentence imposed following revocation of
his supervised release in April 2010, arguing that the district court violated his
equal protection rights by conditioning supervised release on his payment of
restitution, when he lacks the financial resources to make payments and thus
faces imprisonment based on his inability to pay. He further argues that the
court improperly delegated its authority to set a restitution payment schedule
to a probation officer.

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
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                                    No. 10-40366

      Lopez is currently serving a 13-month term of imprisonment following his
most recent revocation of supervised release in April 2011 for failing to comply
with the regulations of his community confinement center; however, the April
2011 judgment reflects that no term of supervised release will follow Lopez’s
current prison term. Thus, as to his equal protection claim, Lopez presents no
live case or controversy for which this court may grant relief because he no
longer faces the threat of imprisonment if he fails to make restitution payments.
His equal protection argument is, for this reason, moot and dismissed. See
Spencer v. Kemna, 523 U.S. 1, 7 (1998); see also United States v. Rosenbaum-
Alanis, 483 F.3d 381, 383 (5th Cir. 2007).
      As to Lopez’s improper delegation argument, the April 2010 judgment at
issue in the instant appeal requires payment of the total restitution figure at a
monthly rate to be determined by a probation officer. Appeal of this issue is not
moot because the April 2011 judgment indicates that Lopez remains subject to
a restitution order but again fails to reflect the manner of payment.
      Restitution orders are reviewed for an abuse of discretion. United States
v. Myers, 198 F.3d 160, 168 (5th Cir. 1999). Because Lopez did not object in the
district court on the grounds raised in the instant appeal, our review is limited
to plain error. Id. To show plain error, Lopez must show a forfeited error that
is clear or obvious and affects his substantial rights. Puckett v. United States,
129 S. Ct. 1423, 1429 (2009). If he makes this showing, we have the discretion
to correct the error but only if it “seriously affects the fairness, integrity or public
reputation of judicial proceedings.” Id. (internal quotation marks, citation and
brackets omitted).
      The district court committed clear or obvious error by delegating its
authority to establish the manner of Lopez’s restitution payments. See United
States v. Albro, 32 F.3d 173, 174 & n.1 (5th Cir. 1994). We hold that this error
affected Lopez’s substantial rights and exercise our discretion to correct the

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                                No. 10-40366

error. See id.; see also Puckett, 129 S. Ct. at 1429. This portion of Lopez’s
sentence must, therefore, be vacated and remanded to the district court for
resentencing. See Albro, 32 F.3d at 175.
     DISMISSED,      IN    PART;    VACATED      AND     REMANDED          FOR
RESENTENCING, IN PART.




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