     Case: 09-51153     Document: 00511694746         Page: 1     Date Filed: 12/14/2011




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

                                                                            FILED
                                                                        December 14, 2011

                                       No. 09-51153                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff–Appellee,
v.

LORENZO ROMAN ESPINOZA,

                                                  Defendant–Appellant.



                   Appeal from the United States District Court
                        for the Western District of Texas
                            USDC No. 3:08-CR-2673-1


Before SMITH, PRADO, and ELROD, Circuit Judges.
EDWARD C. PRADO, Circuit Judge:*
        Lorenzo Roman Espinoza (“Espinoza”) pleaded guilty to one count of
unlawfully reentering the United States after a removal, in violation of 8 U.S.C.
§ 1326. The district court sentenced Espinoza to 36 months of imprisonment and
three years of non-reporting supervised release. In calculating the guideline
range of imprisonment, the district court applied a 16-level sentencing
enhancement for a crime of violence pursuant to U.S.S.G. § 2L1.2(b)(1)(A)(ii)
after finding that Espinoza’s prior felony conviction of sexual battery under

        *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 09-51153    Document: 00511694746      Page: 2   Date Filed: 12/14/2011



                                  No. 09-51153

California’s sexual battery statute, Cal. Penal Code § 243.4(a), constituted a
crime of violence. On appeal, Espinoza argues that the district court erred when
it applied the 16-level sentencing enhancement for his prior sexual battery
conviction because the offense is not a crime of violence. As for relief, Espinoza
requests that the court “reverse and vacate” his sentence.
      Espinoza’s appeal is moot because he requests relief that we cannot grant.
The parties have informed the court that in May 2011, subsequent to filing his
appeal, Espinoza was released from prison and deported. Therefore, “the only
portion of the sentence remaining for consideration is the defendant’s term of
supervised release.” See United States v. Rosenbaum-Alanis, 483 F.3d 381, 382
(5th Cir. 2007). Under Rosenbaum-Alanis, however, “[i]n order to resentence the
defendant to correct any error in the defendant’s term of supervised release,” the
Federal Rules of Criminal Procedure require “the defendant to be present and
have the opportunity to allocute.” Id. “Because the defendant has been deported
. . . and is legally unable, without permission of the Attorney General, to reenter
the United States to be present for a resentencing proceeding . . . , there is no
relief we are able to grant him and his appeal is moot.” Id. at 383. Any
argument that he may waive his presence at the resentencing hearing and allow
this proceeding to move forward in absentia is unavailing, as no such waiver has
been presented to this court. Accordingly, the appeal is DISMISSED.




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