United States v. Piceno-Baez

*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this opinion should not be published and is not precedent except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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United States Court of Appeals
Fifth Circuit
F I L E D
July 2, 2007
Charles R. Fulbruge III
Clerk
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 04-41699
Conference Calendar
UNITED STATES OF AMERCIA,
Plaintiff-Appellee,
versus
EFRAIN PICENO-BAEZ,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. 5:04-CR-1158-ALL
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ON REMAND FROM
THE SUPREME COURT OF THE UNITED STATES
Before GARZA, DENNIS, and PRADO, Circuit Judges.
PER CURIAM:*
Mr. Piceno-Baez pleaded guilty to the charge of
attempted illegal re-entry in violation of 8 U.S.C. §
1326 and was sentenced to 21 months of imprisonment,

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followed by three years of supervised relief. We
previously affirmed his sentence. United States v.
Piceno-Baez, 168 Fed. Appx. 644 (5th Cir. 2006). The
Supreme Court has vacated and remanded the case for
reconsideration in light of Lopez v. Gonzalez, 127 S.Ct.
625 (2006). Gutierrez-Tovar et al. v. United States, 127
S.Ct. 828 (2006). Following the Supreme Court's remand,
we requested and received supplemental letter briefs from
both parties regarding the impact of Lopez.
Mr. Piceno has since completed his term of
imprisonment; counsel concedes his removal. His appeal
is therefore moot, according to binding circuit
precedent. United States v. Rosenbaum-Alanis, 483 F.3d
381, 383 (5th Cir. 2007) (“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 as required by
Rule 43, there is no relief we are able to grant him and
his appeal is moot.”). We therefore DISMISS the appeal as
to the judgment of sentence. We AFFIRM the judgment of
conviction; Mr. Piceno’s arguments in that regard remain

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foreclosed by Almendarez-Torres v. United States, 523
U.S. 224 (1998).

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