United States v. Jose Lopez-Solis
Appeal Court of Appeals for the Fifth Circuit, Case No. 09-50882

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Case: 09-50882 Document: 00511264262 Page: 1 Date Filed: 10/15/2010

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
October 15, 2010
No. 09-50882
Summary Calendar Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v. JOSE LOPEZ-SOLIS, also known as Jose Luis Lopez,
Defendant-Appellant
Appeal from the United States District Court for the Western District of Texas
USDC No. 3:07-CR-540-1
Before REAVLEY, DENNIS, and CLEMENT, Circuit Judges. PER CURIAM:*

Jose Lopez-Solis pleaded guilty to illegal reentry after deportation and was sentenced to 24 months of imprisonment and 3 years of supervised release. This court vacated the sentence and remanded the matter for resentencing. United States v. Lopez-Solis, 330 F. App'x 497 (5th Cir. 2009). Lopez-Solis was released from prison on August 21, 2009, and was deported on August 22, 2009. On September 16, 2009, the district court sentenced him in absentia, over defense

*

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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.

Case: 09-50882 Document: 00511264262 Page: 2 Date Filed: 10/15/2010
No. 09-50882
counsel's objections, to 21 months of imprisonment and 3 years of supervised release.

On appeal, Lopez-Solis's counsel argues that the district court erred in sentencing Lopez-Solis in absentia. The Government concedes that the in- absentia sentencing was error but argues that the appeal is moot because there is no relief that the court is able to grant to Lopez-Solis. Lopez-Solis's counsel seeks to have the erroneous sentence vacated, but such an action necessarily includes a remand for a correct sentencing. We cannot grant what counsel requests because resentencing would require Lopez-Solis to be present at a hearing to consider a new sentence and his deportation bars such an appearance. See United States v. Rosenbaum-Alanis, 483 F.3d 381, 383 (5th Cir. 2007). Notwithstanding the conceded error in the in-absentia proceeding, the appeal of Lopez-Solis's sentence is moot.

The appeal is DISMISSED.

[End Page 2]

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