United States v. Lozano-Mireles
224 F. App'x 431
April 16, 2007 · Docket 05-40024
Headnotes
Generated summaries- Headnote 1
The court explained that Rule 43 requires Lozano’s presence at resentencing; without his physical presence the district court cannot proceed with a new sentencing hearing.
- Headnote 2
The Fifth Circuit held Lozano’s appeal moot after finding he had finished his prison term, been deported, and therefore could not be present for a resentencing proceeding required by Rule 43.
- Headnote 3
Relying on Rosenbaum‑Alanis, the court found that Lozano’s completed imprisonment, deportation, and the requirement of presence for any supervised‑release modification satisfied the no‑relief test, rendering his resentencing appeal moot.
- Headnote 4
The court concluded that the district court could not proceed with resentencing Lozano while he remained abroad, since Rule 43 requires his physical presence for the proceeding to be valid.
- Headnote 5
The court explained that Rule 43 requires the defendant’s physical presence and a chance to speak at sentencing. Because the rule makes presence a jurisdictional prerequisite, a court cannot lawfully conduct a resentencing without the defendant in the United States.
- Headnote 6
The Fifth Circuit applied the mootness doctrine and concluded that because Lozano had finished his imprisonment and could not be present for resentencing, no further relief was possible, so the appeal was dismissed as moot.
- Headnote 7
The court applied a three‑factor analysis—completion of confinement, legal inability to re‑enter the United States, and Rule 43’s presence requirement that bars modification of supervised release—to find the appeal moot, following United States v. Rosenbaum‑Alanis.
- Headnote 8
Because Rule 43 requires the defendant’s presence and Lozano was deported, the district court lacked authority to resentence, and the appellate court dismissed the appeal as moot.
- Headnote 9
The court noted that Rule 43 mandates Lozano’s presence at resentencing, and that without such presence the district court lacks the authority to conduct resentencing.
- Headnote 10
Lozano was deported and could not re‑enter the United States; the court held that without physical presence the district court lacks power to resentence.
- Headnote 11
The Fifth Circuit concluded Lozano’s appeal was moot because he finished his imprisonment, was deported, and any remaining supervised‑release term could not be altered without his presence.
- Headnote 12
Rosenbaum‑Alanis provides a three‑step factual inquiry; when all are satisfied, the court dismisses the appeal as moot.
- Headnote 13
The court explained that the only remaining portion of Lozano’s sentence was supervised release, which cannot be altered without his presence as mandated by Rule 43.
- Headnote 14
The Fifth Circuit noted that because Rule 43 mandates the defendant’s presence, Lozano‑Mireles could not be resentenced while he was abroad and unable to attend.
- Headnote 15
The court applied the “no‑relief” test, concluding that because Lozano finished his prison term, was deported, and the remaining supervised‑release term could not be modified without him, the appellate court could grant no further relief.
- Headnote 16
The opinion referenced Rosenbaum‑Alanis as controlling precedent, adopting its reasoning that completion of confinement and inability to appear for resentencing render the appeal moot.
- Headnote 17
Since Lozano was deported and could not re‑enter the United States, the district court lacked the authority to hold a resentencing proceeding under Rule 43.
- Headnote 18
The court concluded that because no further relief could be granted to Lozano, the appeal was dismissed as moot.
- Headnote 19
The Fifth Circuit noted that the rule makes personal attendance a jurisdictional prerequisite; therefore, the district court could not proceed with resentencing while Lozian‑Mireles was abroad because his presence was required by Rule 43.
- Headnote 20
The court applied the “no‑relief” test from United States v. Rosenbaum‑Alanis, finding that Lozano‑Mireles had finished his prison term, was deported and barred from re‑entering the United States, and that any resentencing would require his presence, leaving the court unable to provide any remedy.
- Headnote 21
The court held that Lozano could not be resentenced because Rule 43 makes personal appearance a jurisdictional prerequisite; without it the district court lacks authority to proceed.
- Headnote 22
Because Lozano finished his prison term, was deported, and could not appear for resentencing, the court found no possible relief and dismissed the appeal as moot.
- Headnote 23
Citing Rosenbaum‑Alanis, the court performed the three‑step inquiry and concluded that, since all elements were satisfied, the appeal could not provide any further relief and was therefore moot.
Opinion
ON REMAND FROM THE SUPREME COURT OF THE UNITED STATES
In a previous opinion in this case, we affirmed the conviction of defendant-appellant Francisco Javier Lozano-Mireles (“Lozano”) but vacated his sentence and remanded for resentencing. See United States v. Lozano-Mireles, 161 Fed.Appx. 432, 433 (5th Cir.2006) (per curiam) (unpublished opinion). On December 11, 2006, the Supreme Court vacated our judgment and remanded the case to us for further consideration in light of Lopez v. Gonzales, — U.S.-, 127 S.Ct. 625, 166 L.Ed.2d 462 (2006). See Gutierrez-Tovar v. United States, — U.S.-, 127 S.Ct. 828, 166 L.Ed.2d 662 (2006). On remand, we conclude that Lozano’s appeal is now moot as a result of his release from prison and subsequent deportation, and we dismiss his appeal.
Lozano was convicted of being found knowingly and unlawfully present in the United States after a previous deportation in violation of 8 U.S.C. § 1326. Applying the then-mandatory version of the United States Sentencing Guidelines (“U.S.S.G.” or “Guidelines”), the district court calculated Lozano’s total offense level as thirteen and his criminal-history category as III, yielding a sentencing range of eighteen to twenty-four months’ imprisonment. The court’s calculation of Lozano’s total offense level included an eight-level enhancement pursuant to U.S.S.G. § 2L1.2(b)(l)(C) for a prior aggravated-felony conviction; Lozano’s prior conviction was a Florida felony conviction for cocaine possession. The district court imposed a sentence of eighteen months’ imprisonment and three years’ supervised release.
On appeal, Lozano argued (1) that his sentence was imposed in violation of United States v. Booker, 543 U.S. 220,125 S.Ct. 738, 160 L.Ed.2d 621 (2005); (2) that the eight-level Guidelines enhancement for a prior aggravated-felony conviction was improper; and (3) that the “felony” and “aggravated felony” provisions of § 1326(b)(1) and (2) were unconstitutional facially and as applied. We rejected Lozano’s third argument as foreclosed by Almendarez-Torres v. United States, 523 U.S. 224, 235, 118 S.Ct. 1219,140 L.Ed.2d 350 (1998), and consequently we affirmed his conviction. We also rejected his second argument as foreclosed by United States v. Hinojosa-Lopez, 130 F.3d 691, 694 (5th Cir.1997). But concluding that the district court erred by sentencing Lozano pursuant to a mandatory Guidelines scheme, we vacated his sentence and remanded for resentencing. The Supreme Court granted certiorari, vacated our judgment, and remanded the case for further consideration in light of Lopez.
On remand, the parties alert us to the fact that Lozano has completed the confinement portion of his sentence and has apparently been deported from the United States, although his term of supervised release is ongoing. A condition of Lozano’s supervised release is that he not illegally reenter the United States during the term of his supervised release. Thus, assuming arguendo that there is Lopez error, Lozano is prohibited from reentering the United States (without permission from the Attorney General) to be present for a resentencing proceeding before the district court. But Rule 43 of the Federal Rules of Criminal Procedure requires Lozano’s presence at resentencing.
This court recently addressed the status of an appeal with nearly identical circumstances in another case remanded by the Supreme Court in light of Lopez. In United States v. Rosenbaum-Alanis, we concluded that such an appeal was moot because there was no relief we could grant the defendant. 483 F.3d 381, 382-83 (5th Cir.2007). We reasoned:
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 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-Alanis controls our decision in this case. Accordingly, Lozano’s appeal is DISMISSED as moot.
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.