U.S. v. Blackburn, Docket No. 05-1875-cr.

• Decision Date: 26 July 2006
• Docket Number: Docket No. 05-1875-cr.
• Citation: 461 F.3d 259
• Parties: UNITED STATES of America, Appellee, v. Wesley BLACKBURN, Defendant-Appellant.
• Court: U.S. Court of Appeals — Second Circuit

461 F.3d 259

UNITED STATES of America, Appellee, v. Wesley BLACKBURN, Defendant-Appellant.

Docket No. 05-1875-cr.

United States Court of Appeals, Second Circuit.

Argued: December 23, 2005.

Decided: July 26, 2006.

Timothy W. Hoover, Assistant Federal Defender, Federal Public Defender's Office, Western District of New York, Buffalo, NY, for Defendant-Appellant.

James P. Kennedy, Jr., Assistant United States Attorney, Western District of New York, Buffalo, NY, (Kathleen M. Mehltretter, Acting United States Attorney for the Western District of New York, Buffalo, NY, of counsel), for Appellee.

Before MESKILL, SOTOMAYOR, Circuit Judges, and KAPLAN, District Judge¹.

MESKILL, Circuit Judge.

Defendant-appellant Wesley Blackburn challenges the judgment of the United States District Court for the Western District of New York, Skretny, J., sentencing him principally to 37 months imprisonment followed by three years supervised release. Blackburn's sole argument on appeal is that the district court erred in imposing a four-level sentencing enhancement pursuant to United States Sentencing Guidelines ("U.S.S.G." or "Guidelines") § 2K2.1(b)(5). Because Blackburn has completed his prison sentence and we are convinced that a favorable decision on appeal would yield no "effectual relief," United States v. Quattrone, 402 F.3d 304, 308 (2d Cir.2005), we conclude that the case is moot and dismiss it for lack of jurisdiction without reaching the merits of Blackburn's claim.

BACKGROUND

The facts underlying Blackburn's conviction and sentence are not in dispute. On March 16, 2003, Blackburn and another man burglarized an apartment in North Tonawanda, New York, and stole three firearms manufactured outside the state of New York. Blackburn and his accomplice later sold the firearms to a third party.

Blackburn, who had a previous felony conviction from New York State, was charged in state court with burglary, criminal sale of a firearm, grand larceny, petit larceny, and criminal possession of a weapon. These state charges were dismissed after the federal prosecution was instituted.

Blackburn waived indictment and pleaded guilty, pursuant to a written plea agreement with the federal government, to a one-count information charging him with being a felon in possession of firearms in violation of 18 U.S.C. § 922(g)(1). In the plea agreement, Blackburn admitted all the facts necessary to establish the felon-in-possession charge (the offense of conviction) as well as the uncharged offenses of the burglary and sale of the stolen firearms.

The United States Probation Department prepared a Pre-Sentence Report (PSR), recommending a sentencing range under the Guidelines of 46 to 57 months imprisonment. The PSR's calculation included, among other enhancements, a four-level increase over the base offense level pursuant to U.S.S.G. § 2K2.1(b)(5) because the firearms were possessed "in connection with another felony offense"—that other felony offense being the admitted burglary.

Blackburn objected to the application of the § 2K2.1(b)(5) enhancement. He also asked the judge to depart downward with respect to his Criminal History, from Category IV to Category III, on the ground that Category IV overrepresented his criminal history.

The district court found that the § 2K2.1(b)(5) enhancement applied, but imposed a non-Guidelines term of imprisonment of 37 months—9 months below the indicated Guidelines range of 46 to 57 months. The court further imposed a three-year term of supervised release, which included both standard and special conditions.

Blackburn timely appealed from his sentence. At oral argument the government informed us that Blackburn was scheduled to have been released from federal prison two days previously. Later it was confirmed that Blackburn had, in fact, been released from custody and was serving his three-year term of supervised release. By order of our Court, the parties submitted further briefing as to whether Blackburn's release from custody mooted his appeal.

DISCUSSION

Article III, Section 2 of the United States Constitution limits the federal judicial power to "cases" and "controversies." U.S. Const. art. II, § 2. This "case-or-controversy limitation ... underpins both our standing and our mootness jurisprudence." Friends of the Earth v. Laidlaw Envtl. Servs., 528 U.S. 167, 180, 120 S.Ct. 693, 145 L.Ed.2d 610 (2000).

[T]o satisfy Article III's standing requirements, a plaintiff must show (1)[he] has suffered an "injury in fact" that is (a) concrete and particularized and (b) actual or imminent, not conjectural or hypothetical; (2) the injury is fairly traceable to the challenged action of the defendant; and (3) it is likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision.

Id. at 180-81, 120 S.Ct. 693 (citing Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992)). "[I]t is the burden of the party who seeks the exercise of jurisdiction in his favor, clearly to allege facts demonstrating that he is a proper party to invoke judicial resolution of the dispute." Spencer v. Kemna, 523 U.S. 1, 11, 118 S.Ct. 978, 140 L.Ed.2d 43 (1998) (internal quotation marks omitted).

"In order to satisfy the case-or-controversy requirement, a party must, at all stages of the litigation, have an actual injury which is likely to be redressed by a favorable judicial decision." United States v. Mercurris, 192 F.3d 290, 293 (2d Cir. 1999) (citing Spencer, 523 U.S. at 7, 118 S.Ct. 978). Thus, as a general rule, "if an event occurs during the course of the proceedings or on appeal `that makes it impossible for the court to grant any effectual relief whatever to a prevailing party,' we must dismiss the case." Quattrone, 402 F.3d at 308 (quoting Church of Scientology v. United States, 506 U.S. 9, 12, 113 S.Ct. 447, 121 L.Ed.2d 313 (1992) (further internal quotation marks and citation omitted)).

Several of our sister circuits have held that a challenge to a sentence by a criminal defendant who has completed his prison term but remains subject to supervised release is not moot because the possibility of the district court's reducing the term of supervised release on remand gives the defendant-appellant a continuing stake in the outcome. See, e.g., United States v. Larson, 417 F.3d 741, 748 (7th Cir.2005); United States v. Castro-Rocha, 323 F.3d 846, 847-48 n. 1 (10th Cir.2003); United States v. McCoy, 313 F.3d 561, 564 (D.C.Cir.2002) (en banc); United States v. Verdin, 243 F.3d 1174, 1178-79 (9th Cir. 2000).² The record before us, however, reveals that the possibility of the district court's imposing a reduced term of supervised release on remand is so remote and speculative that any decision on the merits of Blackburn's claim would amount to a "declar[ation of] principles or rules of law which cannot affect the matter in issue in the case before [us]," Mills v. Green, 159 U.S. 651, 653, 16 S.Ct. 132, 40 L.Ed. 293 (1895), and would thus run afoul of Article III's restriction of our power.

There is every indication in the record that the district court would not reduce Blackburn's term of supervised release on remand. Much to the contrary, the transcript of sentencing reveals the court's design to keep as close an eye on Blackburn as possible for as long as possible. Judge Skretny stated that he had been "searching to latch on to something that tells me that maybe a sentence outside of the Guideline range is the appropriate sentence in this case," but repeatedly expressed his concern about Blackburn's constant failures to help himself and turn his life around when given previous opportunities to do so. The judge asked, "What makes it different now?".

Blackburn replied that his prior bad acts occurred while he was young, stupid and drinking. On his behalf, Blackburn's attorney requested that Blackburn be sentenced to a particular treatment program even though participation in such a program would not yield any "sentencing break." Asking for a "second chance," Blackburn's attorney pledged that Blackburn's actions would demonstrate his commitment to turn his life around. Most significantly, Blackburn's pitch for a non-Guidelines sentence expressly included a rigorous period of supervised release:

He doesn't want a second chance so he can get probation. He doesn't want a second chance so he can skate on this. He's not going to skate, because I'm sure the Court is going to—the Court will have to and will impose a significant supervised release period on him in addition to the incarceration. So, you know, actions speak louder than words.

Having made such a pitch, Blackburn could not have been surprised that the district court imposed the maximum term of supervised release—three years.

The sentence Blackburn requested—and that the court imposed—aimed at decreasing prison time and increasing supervision of Blackburn's actions to see whether he would "make good on [his] promises." The court, of course, ultimately credited Blackburn's statements that he was ready to turn his life around and imposed a term of imprisonment below the indicated Guidelines range. Still, Judge Skretny again expressed concern as to Blackburn's unfavorable track record, described what he wanted to see in Blackburn's behavior and, accordingly, imposed some special conditions of supervised release—for example, completion of a G.E.D. program. The judge warned, "[i]f you don't help yourself, which is where you've been lacking in the past, ... [i]f you foul up with respect to any of those [special conditions], I'll remember everything that we talked about if you come back before me on a violation." In light of the court's repeated expression of its concern about Blackburn's commitment to follow through with his promised lifestyle changes and its tailoring of the conditions of supervised release to monitor Blackburn's progress, we find it impossible to believe that the court would reduce the...