No Equitable Vacatur of Supervised Release for Deported 1326 Defendant

United States v. Heredia-Holguin, No. 14-10846 (5th Cir. June 16, 2015) (Reavley, Owen, Higginson)

 

Heredia-Holguin was sentenced to one year in prison and a three-year term of supervised release for illegal reentry. He did not object to his sentence or term of supervised release. While Heredia-Holguin’s appeal was pending, he served his one-year prison term and was deported with supervised release. After his deportation, his counsel filed a brief conceding the deportation rendered the appeal moot, and he requested that his remaining term of supervised release be vacated.  

 

The panel ordered supplemental briefing on three issues: 1) what error had Heredia-Holguin complained of on appeal, 2) whether the appeal had become moot, and 3) if the appeal was moot, “whether the court should vacate the conviction, sentence, or term of supervised release under the doctrine of equitable vacatur.”  

 

First, Heredia-Holguin emphasized in his supplemental briefing that he was not pursuing the sentencing appeal.  Rather, he “requested only that the panel vacate the remaining term of his supervised release.”

 

As to mootness, the panel discussed United States v. Lares-Meraz and United States v. Rosenbaum-Alanis, which arrived at opposite conclusions regarding mootness of a sentencing appeal after the defendant is deported. In Lares-Meraz, the “alleged sentencing error,” was not moot “because the defendant remained the subject to a term of supervised release, an element of the overall sentence.” The error, however, was harmless. In Rosenbaum-Alanis, the defendant’s sentencing appeal was moot because the defendant could not reenter the U.S. for resentencing purposes, and no waiver was on record allowing for his absence. The panel perceived inconsistences between Lares-Meraz and Rosenbaum-Alanis but opted not to resolve them.

 

Assuming Heredia-Holguin’s appeal was moot, the panel denied his request to vacate his supervised release under the doctrine of equitable vacatur. “[V]acatur is in order when mootness occurs through happenstance or unilateral action of the party who prevailed in the lower court.”  Heredia-Holguin’s deportation, however, cannot be attributed to happenstance or the unilateral action of the Government since it was the natural consequence of Heredia-Holguin reentering the United States illegally. Furthermore, the district court “imposed the term of supervised release to deter Heredia-Holguin from illegally returning to the U.S.”  In light of the deterrent effect and his failure to object to the imposition of supervised release before the district court, the panel did not exercise its equitable discretion to vacate Heredia-Holguin’s term of supervised release. 

 

Since it denied Heredia-Holguin’s request, the panel did not address “the Government’s argument that equitable vacatur is a civil doctrine that is not available in a criminal case as a matter of law.”

 

Thanks to FPD Intern Adam Pena for this post.

Circuit Split On Whether Deportation Renders Sentencing Appeal Moot When Alien Is Still Serving Term of Supervised Release

Let's say you're an alien convicted of illegal reentry. The district court sentences you to a term of imprisonment, to be followed by a period of supervised release. The court made an error to your detriment when it calculated your guideline range, and imposed a sentence within the incorrect range. You therefore appeal. While your appeal is pending, you complete your term of imprisonment and are deported. Is your appeal now moot, even though you are serving a non-reporting term of supervised release?

"Yes," said the Fifth Circuit in United States v. Rosenbaum-Alanis. The court acknowledged that, if the sentence were to be vacated, the district court could impose a different term of supervised release on remand. But it held that because Fed. R. Crim. P. 43 requires the defendant's presence at resentencing, and because Rosenbaum's deportation rendered him "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." The court held out the possibility that a live controversy might remain if a deported defendant waives his Rule 43 right to be present at resentencing, but the court declined to resolve that question because Rosenbaum hadn't submitted such a waiver.

It looks like we now have a circuit split on the mootness issue. Earlier this week, in United States v. Figueroa-Ocampo, the Ninth Circuit held that an illegal reentry defendant's appeal was not moot, even though he had completed his term of imprisonment and was serving his term of supervised release at the time the court decided his appeal. (The opinion doesn't specifically say that Figueroa was deported after he completed his imprisonment term, although it's a fair inference that he was, given that he served a federal sentence for illegal reentry.) The court recognized that the guideline calculation error affected not only the guideline imprisonment term, but also the recommended guideline supervised release term. Because "Figueroa-Ocampo’s three-year term of supervised release was calculated based on the wrong statutory provision[,]" and "[b]ecause it is possible that the district court would have imposed a shorter term of supervised release had it calculated Figueroa-Ocampo’s sentence under the correct guideline," the court held "that Figueroa-Ocampo’s sentencing appeal is not moot."

Granted, the conflict between Rosenbaum-Alanis and Figueroa-Ocampo isn't as clear cut as it could be, since Figueroa-Ocampo doesn't mention the Rule 43 angle and Rosenbaum-Alanis seems have left the Rule 43 waiver question open for the time being. Nevertheless, it's definitely fodder for a cert petition.

And don't forget that the Supreme Court has shown interest this issue. It was briefed and argued in Toledo-Flores v. United States, the companion case to Lopez v. Gonzalez. The Court granted cert in both cases to resolve the issue of whether a state felony conviction for simple possession of a controlled substance is an aggravated felony under the INA. The Court answered that question "no" in Lopez, but dismissed the writ of certiorari in Toledo-Flores as improvidently granted, without explanation. The most likely reason for the DIG is that the Court could still resolve the simple-possession-as-aggravated-felony issue for both criminal and immigration purposes in Lopez, and, consistent with Chief Justice Roberts' professed desire for a minimalist approach to decisionmaking, avoid reaching a significant constitutional question involving the Article III case or controversy requirement.

It looks like the Court will need to resolve that question after all. As discussed here, this is an important issue. It affects a potentially large number of cases, and the Fifth Circuit's approach has the potential to stifle development of case law on important guideline application issues affecting an even larger number of cases, contrary to the aims of the Sentencing Reform Act. Maybe the Court will bite if this is the central issue presented from the get-go.

(Additional commentary on Figueroa-Ocampo is available here and here at the Ninth Circuit Blog.)

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.