* 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this opinion should not be published and is not precedent except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.

United States Court of Appeals

Fifth Circuit

FILED

May 2, 2006

Charles R. Fulbruge III

Clerk

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 04-11321

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

LUIS GREGORY RODRIGUEZ-MUNOZ,

Defendant-Appellant.

--------------------

Appeal from the United States District Court

for the Northern District of Texas

USDC No. 6:04-CR-29-ALL 

--------------------

Before JOLLY, DAVIS, and OWEN, Circuit Judges.

PER CURIAM:*

Luis Gregory Rodriguez-Munoz appeals his conviction and

sentence for aiding and abetting the transportation of 

undocumented aliens within the United States by means of a motor

vehicle, in violation of 8 U.S.C. § 1324(a)(1)(A)(ii) and 18

U.S.C. § 2. 

Mootness

As an initial matter, this court must raise the issue of

mootness sua sponte because it is a threshold issue and
No. 04-11321

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implicates Article III jurisdiction. See Bailey v. Southerland,

821 F.2d 277, 278 (5th Cir. 1987). According to the records of

the Federal Bureau of Prisons, Rodriguez-Munoz was released from

prison on April 13, 2006. He is serving a three-year term of

supervised release. 

To the extent that Rodriguez-Munoz appeals his conviction,

his appeal is not moot simply because his term of imprisonment

has expired. See Spencer v. Kemna, 523 U.S. 1, 7 (1998). His

appeal of his sentence is not moot, either, because the district

court has the authority to modify the conditions of supervised

release pursuant to 18 U.S.C. § 3583(e)(2) or, after the

expiration of one year of supervised release, the authority to

terminate Rodriguez-Munoz’s supervised release obligations

pursuant to 18 U.S.C. § 3583(e)(1). See United States v.

Johnson, 529 U.S. 53, 59 (2000); see also Johnson v. Pettiford,

___ F.3d ___, 2006 WL 620782, at *1 (5th Cir. Mar. 14, 2006);

United States v. Hernandez, 2006 WL 690882 (5th Cir. Mar. 20,

2006) (unpublished); United States v. Benavides, 145 F. App’x 971

(5th Cir. Aug. 26, 2005) (unpublished).

Rodriguez-Munoz’s Conviction

Rodriguez-Munoz asserts that his Fed. R. Crim. P. 43 and

Sixth Amendment rights to a fair trial and an impartial jury were

violated because the Government conducted the majority of its

voir dire without his or his counsel’s presence. He bases these

claims on the fact that, before his trial, the Government
No. 04-11321

-3-

conducted voir dire on most of his venire in an unrelated trial. 

When reviewing a district court’s denial of a motion to strike

the venire, this court reviews determinations of fact for clear

error and determinations of law de novo. See United States v.

Alix, 86 F.3d 429, 434 (5th Cir. 1996). 

Rodriguez-Munoz was “guaranteed the right to be present at

any stage of the criminal proceeding that is critical to its

outcome if his presence would contribute to the fairness of the

procedure.” Kentucky v. Stincer, 482 U.S. 730, 745 (1987). 

However, “prior jury service during the same term of court in

another criminal case is not, standing alone, a sufficient basis

to support a challenge for cause.” United States v. Jefferson,

569 F.2d 260, 261 (5th Cir. 1978). To sustain a challenge for

cause, there must be “specific evidence that the prior service

biased a particular juror[.]” Id. Because Rodriguez-Munoz has

not asserted a specific bias against any juror, he has failed to

establish that he suffered any prejudice or that his trial was

unfair because he was not present at the voir dire in the

unrelated trial. See Jefferson, 569 F.2d at 261. Therefore, his

argument that he had a right to be present at the voir dire in an

unrelated trial is unavailing. See Stincer, 482 U.S. at 745. 

Rodriguez-Munoz also had the right to counsel “during a

critical stage of the proceeding.” United States v. Cronic, 466

U.S. 648, 659 & n.25 (1984). Based on this right, RodriguezMunoz alleges that his attorney had the right to be present at
No. 04-11321

-4-

the voir dire in the unrelated trial. To prevail on his right to

counsel claim, Rodriguez-Munoz has to establish that the voir

dire in the unrelated trial was a critical stage of the

proceeding against him and affected his substantial rights. See

Cronic, 466 U.S. at 659 & n.25. Fed. R. Crim. P. 43 sets out the

specifics of Rodriguez-Munoz’s right to be present. Under Fed.

R. Crim. P. 43, Rodriguez-Munoz’s presence in the courtroom was

required at every stage of his trial, see Illinois v. Allen, 397

U.S. 337, 338 (1970), which began when jury selection began in

his case. United States v. Krout, 56 F.3d 643, 646 (1995). 

Rodriguez-Munoz was in court and represented by counsel when jury

selection began in his case. His right to counsel claim is

unavailing.

Accordingly, Rodriguez-Munoz’s conviction is affirmed. 

Rodriguez-Munoz’s Sentence

Rodriguez-Munoz renews his argument, preserved in the

district court, that in light of the Supreme Court’s decision in

Blakely v. Washington, 542 U.S. 296 (2004), his Sixth Amendment

rights were violated when the district court assessed a threelevel enhancement under § 2L1.1(b)(2)(A), because Rodriguez-Munoz 

had smuggled a total of ten illegal aliens. 

Where, as here, an error under United States v. Booker, 543

U.S. 220 (2005), has been preserved in the district court, we

“will ordinarily vacate the sentence and remand,” unless the

error is harmless.” United States v. Pineiro, 410 F.3d 282, 284
No. 04-11321

-5-

(5th Cir. 2005) (internal quotation marks and citation omitted). 

The Government bears the burden of demonstrating that the error

was harmless beyond a reasonable doubt. Id. at 285. In order to

carry this burden, the Government must show that the Booker error

did not affect the sentence, i.e., it must show “that the

district court would have imposed the same sentence absent the

error.” Id. at 286.

The Government concedes Booker error. However, it contends

that the error was harmless “because it is clear beyond a

reasonable doubt that the district court would not have imposed a

lesser sentence if the guidelines had been advisory rather than

mandatory at the time of Rodriguez-Munoz’s sentencing.” It notes,

inter alia, that the district court imposed a sentence at the top

of the guideline range and that the district court found the

“sentence adequately addressed the sentencing objectives of

punishment and deterrence.” 

The imposition of the maximum sentence within the guideline

range alone is insufficient to establish that the Booker error was

harmless beyond a reasonable doubt. See United States v. Woods,

440 F.3d 255, 258-59 (5th Cir. 2006). In light of Woods, there is

nothing in the record which demonstrates beyond a reasonable doubt

that the district court would have imposed the same sentence under

the post-Booker advisory sentencing regime. 

Accordingly, the Government cannot meet its burden, and

Rodriguez-Munoz’s sentence is vacated and the case is remanded for
No. 04-11321

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resentencing in accordance with Booker. This remedy does indeed

present an unusual situation: the district court must impose a

new sentence, which includes a term of imprisonment, but

Rodriguez-Munoz has completed that part of his sentence; thus,

even if the district court decides to impose a lesser sentence,

which it is authorized to do, it will have no effect on prison

time to be served. Thus, the only practical relief available on

remand is that provided in 18 U.S.C. § 3583(e), a decision

committed to the discretion and good judgment of the district

court.

CONVICTION AFFIRMED; SENTENCE VACATED; REMANDED FOR

RESENTENCING.