United States v. Rodriguez-Cuevas

* 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opinion should not be published and is not precedent except under the limited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
F I L E D
April 16, 2007
Charles R. Fulbruge III
Clerk
UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 05-40889
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
VERSUS
RUBEN RODRIGUEZ-CUEVAS,
Defendant-Appellant.
Appeal from the United States District Court
For the Southern District of Texas, Laredo
USDC No. 5:05-CR-98-ALL
ON REMAND FROM THE SUPREME COURT OF THE UNITED STATES
Before JONES, Chief Judge, and JOLLY and DAVIS, Circuit Judges.
PER CURIAM:*
This court previously affirmed the conviction and
sentence of the Appellant Ruben Rodriguez-Cuevas (“Cuevas”). On
December 11, 2006, the Supreme Court vacated and remanded the case
for reconsideration in light of Lopez v. Gonzalez, 127 S. Ct. 625
(2006).
In light of Lopez, the district court erred by enhancing
Cuevas’s sentence based on a state conviction for possession of

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methamphetamine. Because Cuevas 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.
However, as the Federal Public Defender notes, Cuevas
presumably has been deported. In order to resentence the defendant
to correct the error and reduce 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. 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 Cuevas and his appeal is moot. See United States v.
Rosenbaum-Alanis, No. 05-41400, 2007 WL 926832 (5th Cir. March 29,
2007). The appeal is therefore DISMISSED.

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