Friday, July 27, 2007

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.)

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