Fives Hold Defendant's Deportation Renders Sentencing Appeal Moot

United States v. Rosenbaum-Alanis, No. 05-41400 (5th Cir. Mar. 29, 2007) (Jones, Jolly, Davis)

Does deportation moot a sentencing appeal? Until now, the answer to that question in our circuit appeared to be "no," at least as long as the defendant is still subject to some sanction imposed as part of the overall sentence (such as if he's serving a non-reporting term of supervised release, and faces the possibility of revocation should he return to the United States prior to the expiration of his TSR). Enter Rosenbaum-Alanis, which muddies the waters on the issue, and also raises troubling questions about whether there will be an entire category of sentences that are effectively insulated from appellate review.

The mootness question cropped up recently in the Supreme Court's disposition of a couple of cases asking whether a state felony drug conviction qualifies as an "aggravated felony" under the INA if the identical offense would only be punishable as a misdemeanor under the federal Controlled Substances Act. In Lopez v. Gonzales, an immigration case, the Court answered that question "no." At the same time, the Court DIG'ed the companion case of Toled0-Flores v. United States, which presented the same question in the context of an appeal from a criminal conviction for illegal reentry. The Court didn't explain the DIG, but it likely had to do with a mootness question lurking in the case due to the fact that the defendant had been deported by the time the Supreme Court heard the case.

Which brings us to a would-be beneficiary of Lopez: Mr. Everardo Rosenbaum-Alanis. Rosenbaum pled guilty to illegal reentry, and had an aggravated felony enhancement applied at the time of sentencing on account of his prior state felony conviction for possession of marijuana. He appealed the aggravated felony determination, the Fifth Circuit affirmed on the basis of then-controlling precedent, Rosenbaum filed a cert petition, and the Supreme Court GVR'ed for reconsideration in light of Lopez. By that time Rosenbaum had served out his term of imprisonment and been deported to Mexico, although he was still subject to a non-reporting term of supervised release.

But according to the opinion here, Rosenbaum doesn't get the benefit of the Supreme Court's correction of the Fifth Circuit's erroneous construction of the aggravated felony definition because his case is now moot:

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 argues that this court’s decision in United States v. Lares-Meraz compels a contrary conclusion. In Lares-Meraz, the defendant, like Rosenbaum, was released and deported during the pendency of his appeal, while remaining subject to an unexpired term of supervised release. The panel in Lares-Meraz concluded that the case was not moot because of this remaining term of supervised release. The panel, however, was not faced with the prospect of resentencing the defendant because defense counsel conceded that any sentencing error was harmless. The panel therefore affirmed the sentence.

Lares-Meraz does not control this case. By conceding that any error which formed the basis for his appeal was harmless and presenting no argument that militated against affirming the sentence, the defendant in Lares-Meraz did not seek any relief that the court could not grant. By contrast, in this case, the defendant, who is barred from entering the United States and who therefore cannot be resentenced, requests relief which we are unable to grant.

Interestingly, the opinion suggests by negative implication that there's a way in which a live controversy might remain, notwithstanding the defendant's deportation:

We further reject defense counsel's argument that the possibility of obtaining a waiver of the defendant's presence at the sentencing hearing compels remand. No waiver has been presented to this court and the possibility of a future waiver is speculative.

Of course, there's no telling how the court will resolve that question once it presents itself. But let's go ahead and talk about the elephant in the living room: if an appeal remains moot notwithstanding a defendant's waiver of his right to be present at resentencing, then doesn't that mean a non-trivial percentange of sentences in federal court will escape appellate review?

Here's why: 1) Illegal reentry prosecutions represent one of the two or three largest categories of criminal cases in federal court. 2) Illegal reentry cases also account for a large number of sentencing appeals, due to the inordinately complicated and arcane enhancement scheme found in the illegal reentry guideline (see, e.g., the large number of posts on this blog summarizing cases that resolve COV questions under U.S.S.G. §2L1.2). 3) Combine #1 and #2 with a) the average time it takes for cases to make their way through the district court, b) credit for time served pending #1, and c) the average time it takes for cases to wend their way through appeal, and notwithstanding the harshness of §2L1.2 you have more than a few defendants who serve their sentences and get deported before their appeals get resovled.

If the deportation makes these cases moot, regardless of a defendant's Rule 43 waiver, then that effectively means that many of the issues involving 2L1.2 enhancements will rarely, if ever, be resolved by the court of appeals. Given that appellate review is a key feature of the Sentencing Reform Act, and that the absence of appellate guidance on recurring guideline application issues could very well lead to unwarranted sentencing disparities, that simply can't be the right result. Let's hope Rosenbaum-Alanis isn't the last word on this issue.