                                                                          F IL E D
                                                               United States Court of Appeals
                                                                       Tenth Circuit
                    U N IT E D ST A T E S C O U R T O F A PP E A L S
                                                                  September 4, 2007
                                 T E N T H C IR C U IT
                                                                 Elisabeth A. Shumaker
                                                                     Clerk of Court

 U N ITED STA TES O F A M ER ICA,

               Plaintiff-Appellee,                         No. 06-2242

          v.                                             (D. New M exico)

 ED GAR JESUS PEÑA-FLO RES,                        (D.C. No. 06-CR-1048-RB)

               Defendant-Appellant.



                           O R D E R A N D JU D G M E N T *


Before B R ISC O E , H O L LO W A Y , and M U R PH Y , Circuit Judges.




I. Introduction

      Edgar Peña-Flores, a citizen of M exico, pleaded guilty to illegal reentry of

a removed alien and received a sentence of twelve months and one day, followed

by one year of supervised release. W hile the appeal of his sentence was pending,

Peña-Flores completed his term of imprisonment and was removed from the




      *
        This order and judgment is not binding precedent except under the
doctrines of law of the case, res judicata, and collateral estoppel. It may be cited,
however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th
Cir. R. 32.1.
United States. Because Peña-Flores’ removal from the United States has rendered

his appeal moot, this court lacks jurisdiction and dism isses the appeal.

II. Background

      Peña-Flores pleaded guilty to one count of illegal reentry of a removed

alien, in violation of 8 U.S.C. § 1326(a). A presentence report (“PSR”) was

prepared, which recommended a total offense level of ten and a criminal history

category of IV . In calculating Peña-Flores’ offense level, the PSR applied a four-

level enhancement for having been deported after a felony conviction. USSG

§ 2L1.2(b)(1)(D). The enhancement was based on a prior Arizona conviction for

aggravated driving under the influence. See Ariz. Rev. Stat. § 28-1383(A )(1).

Peña-Flores filed objections to the PSR, arguing his prior conviction should not

be characterized as a felony for purposes of the four-level enhancement. The

district court rejected this argument and found Peña-Flores’ total offense level

was ten. After reducing Peña-Flores’ criminal history category from IV to III, the

district court arrived at an advisory guideline range of tw elve to eighteen months.

It then sentenced him to a term of imprisonment of twelve months and one day,

follow ed by supervised release “for a term of [one] year unsupervised.” On

appeal, Peña-Flores challenges only his sentence, arguing his prior conviction

should have been treated as a misdemeanor for purposes of § 2L1.2(b).




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      W hile this case was pending on appeal, Peña-Flores completed his term of

imprisonment and w as removed from the U nited States. Follow ing Peña-Flores’

removal, this court ordered the parties to show cause why the appeal should not

be dismissed as moot. Relying on United States v. Castro-Rocha, 323 F.3d 846,

847-48 n.1 (10th Cir. 2003), both parties agreed the appeal was not moot because

Peña-Flores was serving a term of supervised release that could be reduced or

eliminated by a favorable appellate decision. This court, however, is not bound

by the government’s apparent concession as to mootness. See Steel Co. v.

Citizens for a Better Env’t, 523 U.S. 83, 95 (1998) (“Every federal appellate court

has a special obligation to satisfy itself not only of its own jurisdiction, but also

that of the low er courts in a cause under review, even though the parties are

prepared to concede it.” (quotation omitted)).

III. A nalysis

      The question of mootness in this case is squarely controlled by this court’s

recent decision in United States v. Vera-Flores, 2007 W L 2247660 (10th Cir.

Aug. 7, 2007). Although Peña-Flores is technically still subject to a one-year

term of supervised release, he is not actually under the supervision or control of

the United States Probation Office because he is no longer in the United States.

Like the defendant in Vera-Flores, Peña-Flores’ removal to M exico “has

eliminated all practical consequences associated with serving a term of supervised



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release,” and therefore, Peña-Flores has no “actual injury likely to be redressed by

a favorable judicial decision” Id. at *3. Nor has Peña-Flores satisfied his burden

of demonstrating sufficient collateral consequences arising from the district

court’s sentencing decision and imposition of supervised release. Id. The

possibility that Peña-Flores could law fully reenter the United States during his

term of supervised release, thus reviving his obligations to comply with the

supervised release conditions, is too speculative to avoid dismissal for mootness.

Id.

IV . C onclusion

      For the foregoing reasons, this court dism isses the appeal of the sentence

imposed by the district court.

                                       ENTERED FOR THE COURT




                                       M ichael R. M urphy
                                       Circuit Judge




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