1127 S.Ct. 625 (2006).

United States Court of Appeals

Fifth Circuit

FILED

March 29, 2007

Charles R. Fulbruge III

Clerk

UNITED STATES COURT OF APPEALS

For the Fifth Circuit

No. 05-41400

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

VERSUS

EVERARDO ROSENBAUM-ALANIS

Defendant-Appellant.

Appeal from the United States District Court

For the Southern District of Texas, Brownsville

ON REMAND FROM THE SUPREME COURT OF THE UNITED STATES

Before JONES, Chief Judge, and JOLLY and DAVIS, Circuit Judges.

W. EUGENE DAVIS, Circuit Judge:

In our previous opinion, we affirmed the conviction and

sentence of the Appellant Everardo Rosenbaum-Alanis (“Rosenbaum”).

On December 11, 2006, the Supreme Court vacated our judgment and

remanded the case to us for reconsideration in light of Lopez v.

Gonzalez.

1 On remand, we conclude that Rosenbaum’s release from

prison and subsequent deportation renders us incapable of granting
2Lopez, 127 S.Ct. at 629-633. 

2

relief to the appellant and we dismiss the appeal as moot.

Rosenbaum pleaded guilty to an indictment charging him with

being found in the United States after having been convicted of an

aggravated felony in violation of 8 U.S.C. § 1326. After

calculating his Guideline range at 18 to 24 months, the district

court sentenced Rosenbaum to 18 months in the custody of the United

States Bureau of Prisons, to be followed by a three-year term of

supervised release. 

Rosenbaum appealed from the judgment of conviction and

sentence, arguing that the district court miscalculated the

advisory Sentencing Guidelines range when it found that his state

felony conviction for possession of marihuana was an “aggravated

felony” mandating an eight-level increase in his offense level

calculation. This court rejected Rosenbaum’s claim as foreclosed

by its precedent. The Supreme Court granted certiorari and

remanded the case for reconsideration in light of its opinion in

Lopez.

In Lopez, the Supreme Court held that a state felony

conviction for simple possession of a controlled substance that was

not punishable as a felony under the federal Controlled Substances

Act was not a “drug trafficking crime” under 18 U.S.C. § 924(c) and

hence not an “aggravated felony” under 8 U.S.C. § 1101 (a)(43)(B).2

Appellant argues that, in light of Lopez, his Texas felony
3See 8 U.S.C. § 1326(b); 18 U.S.C. § 3583(b); 18 U.S.C. § 3559.

4See 18 U.S.C. § 3583(b). 

3

conviction for simple possession of a controlled substance does not

qualify as an aggravated felony because that crime was punishable

only as a misdemeanor under the federal Controlled Substances Act

and, accordingly, the district court erred in enhancing his

sentence based on the Texas conviction. He argues further that,

because the district court treated his previous conviction as an

aggravated felony, he was eligible for (and received) a maximum

three year term of supervised release,3 and that without the

aggravated felony enhancement, the maximum term of supervised

release would have been one year.4

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. 

Because the defendant has been deported to the Republic of

Mexico and is legally unable, without permission of the Attorney
5452 F.3d 352 (5th Cir. 2006).

6See 13A Charles Alan Wright, Arthur R. Miller & Edward H.

Cooper, Federal Practice and Procedure: Jurisdiction and Related

Matters § 3553 (2d ed. 1984) (“[A] startling number of cases can be

found dealing with the problems of mootness that arise as events

4

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. 

Rosenbaum argues that this court’s decision in United States

v. Lares-Meraz5 compels a contrary conclusion. In Lares-Meraz, the

defendant, like Rosenbaum, was released and deported during the

pendency of his appeal, while remaining subject to an unexpired

term of supervised release. The panel in Lares-Meraz concluded

that the case was not moot because of this remaining term of

supervised release. The panel, however, was not faced with the

prospect of resentencing the defendant because defense counsel

conceded that any sentencing error was harmless. The panel

therefore affirmed the sentence. 

Lares-Meraz does not control this case. By conceding that any

error which formed the basis for his appeal was harmless and

presenting no argument that militated against affirming the

sentence, the defendant in Lares-Meraz did not seek any relief that

the court could not grant. By contrast, in this case, the

defendant, who is barred from entering the United States and who

therefore cannot be resentenced, requests relief which we are

unable to grant.6
overtake the pace of decision . . . . The central question

nonetheless is constant–whether decision of a once living dispute

continues to be justified by a sufficient prospect that the

decision will have an impact on the parties.”).

5

We further reject defense counsel's argument that the

possibility of obtaining a waiver of the defendant's presence at

the sentencing hearing compels remand. No waiver has been

presented to this court and the possibility of a future waiver is

speculative. 

The appeal is therefore DISMISSED.