U.S. v. Mercurris

• Decision Date: 08 September 1999
• Docket Number: No. 96-1688,96-1688
• Citation: 192 F.3d 290
• Parties: (2nd Cir. 1999) UNITED STATES OF AMERICA, Appellee, v. ROY LEWIS MERCURRIS, also known as Roy Rogers, Defendant-Appellant
• Court: U.S. Court of Appeals — Second Circuit

Page 290

192 F.3d 290 (2nd Cir. 1999)

UNITED STATES OF AMERICA, Appellee, v. ROY LEWIS MERCURRIS, also known as Roy Rogers, Defendant-Appellant.

No. 96-1688

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

Argued May 19, 1999

Decided September 8, 1999

[Copyrighted Material Omitted]

M. KATHERINE BAIRD, Assistant United States Attorney for the Southern District of New York (Mary Jo White, United States Attorney for the Southern District of New York, of counsel), for Appellee.

BEVERLY VAN NESS, New York, New York, for Appellant.

Before: McLAUGHLIN, JACOBS, Circuit Judges, and McMAHON,^* District Judge.

McLAUGHLIN, Circuit Judge:

BACKGROUND

Mercurris, a Guyanese national, accumulated six convictions for the criminal sale of marijuana in New York State courts between 1982 and 1984. In late 1985 he was deported to Guyana. About two years later, Mercurris illegally re-entered the United States. He was arrested on March 18, 1993. After initial attempts to prosecute him for illegal re-entry resulted in a mistrial, the Immigration and Naturalization Service ("INS") attempted to deport Mercurris a second time. However, he refused to sign the proper travel document or board the Guyana-bound plane at Kennedy Airport.

On June 24, 1996, Mercurris was indicted on two counts in the United States District Court for the Southern District of New York (Sotomayor, J.). Count One charged Mercurris with willful failure to depart the country or hampering his own deportation in violation of 8 U.S.C. 1252(e) (1990) (current version at 8 U.S.C. 1253(a) (1996)). Count Two charged him with illegal re-entry into the United States after deportation in violation of 8 U.S.C. 1326. After a three-day trial in June 1996, a jury convicted Mercurris on both counts.

The United States Probation Office prepared a Presentence Report ("PSR"). The PSR calculated a total offense level of 24 under the sentencing guidelines. This represented a base offense level of 8 plus a 16-level enhancement applicable to aliens who illegally re-enter the United States following conviction of an aggravated felony. See U.S.S.G. 2L1.2(a) & (b)(2) (1995 ed.). The aggravated felony enhancement ratcheted Mercurris' sentencing range from 6-12 months to 63-78 months imprisonment.

Mercurris objected to the application of the aggravated felony enhancement. He argued that the enhancement did not apply because his marijuana sales convictions were not punishable for more than a year under New York state law and were therefore not "aggravated felonies" within the meaning of 2L1.2(b)(2). The government responded that, while New York law classified Mercurris' drug offenses as misdemeanors, the aggravated felony enhancement applied because Mercurris' marijuana sales offenses were punishable as felonies under federal law.

After hearing oral argument from the parties on October 17, 1996, the district court rejected Mercurris' argument that the enhancement did not apply because the offenses were misdemeanors under New York state law. Instead, it ruled that "the issue is whether the charge and the conduct underlying the charge fit within a felony definition under federal law." Because Mercurris' marijuana sales offenses would be punishable as felonies under federal law, the district court concluded that the enhancement applied and sentenced him to 63 months imprisonment and a three-year term of supervised release. The supervised release term included a special condition that Mercurris cooperate with the INS in deportation proceedings.

On appeal, Mercurris challenges only the aggravated felony enhancement, arguing once again that his state convictions are not "aggravated felonies" within the meaning of U.S.S.G. 2L1.2(b)(2). He does not challenge his conviction. During the pendency of this appeal, Mercurris completed his prison term and was deported. Accordingly, the government argues that this appeal is moot. We agree and dismiss for lack of jurisdiction.

DISCUSSION

A case becomes moot when it no longer satisfies the "case-or-controversy" requirement of Article III, Section 2 of the Constitution. See Spencer v. Kemna, 523 U.S. 1, 7, 140 L. Ed. 2d 43, 118 S. Ct. 978 (1998). 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. Id.

A criminal case does not necessarily become moot when the convict finishes serving the sentence. Instead, the case will remain a live case or controversy if there exists "some concrete and continuing injury" or "collateral consequence" resulting from the conviction. Id.

In cases involving a challenge to the criminal conviction itself, the Supreme Court "has been willing to presume the existence of collateral consequences sufficient to satisfy the case or controversy requirement; or in a practice that it views as 'effectively the same,' the Court has been willing 'to count collateral consequences that are remote and unlikely to occur.'" United States v. Probber, 170 F.3d 345, 348 (2d Cir. 1999) (emphasis in original) (quoting Spencer, 523 U.S. at 8). This presumption of collateral consequences has been justified on the theory that "most criminal convictions do in fact entail adverse collateral legal consequences," Sibron v. New York, 392 U.S. 40, 55, 20 L. Ed. 2d 917, 88 S. Ct. 1889 (1968), in that convicted criminals often face certain "civil disabilities" as a result of their conviction. Lane v. Williams, 455 U.S. 624, 632 n. 13, 71 L. Ed. 2d 508, 102 S. Ct. 1322 (1982). Examples of such disabilities include being "barred from holding certain offices, voting in state elections, and serving as a juror." Id.

Mercurris acknowledges that he cannot rely upon the presumption of collateral consequences arising from a criminal conviction because he does not challenge his conviction -- he contests only a sentencing enhancement. Nevertheless, Mercurris urges us to presume the existence of collateral consequences sufficient to satisfy Article III's case-or-controversy requirement. We decline to do so.

Mercurris' argument is foreclosed by the Supreme Court's recent decision in Spencer. In that case, the Court expressed a distinct distaste for presuming collateral consequences, going so far as to criticize its own decisions establishing the presumption in the context of criminal convictions. Spencer, 523 U.S. at 8-12. The Court declined to extend the presumption to a case involving a habeas petitioner's challenge to a parole revocation where the petitioner had finished serving his entire sentence. See id. at 14. Relying heavily on its prior decision in Lane v. Williams, 455 U.S. 624, 71 L. Ed. 2d 508, 102 S. Ct. 1322 (1982), the Court explained that parole revocations do not ordinarily result in the sort of civil disabilities that justify the presumption when dealing with a criminal conviction. See Spencer, 523 U.S. at 12-13.

In this case, just as in Spencer, Mercurris does not proffer, nor are we aware of any civil disabilities which attend the longer sentence he served as a result of the district court's application of the aggravated felony enhancement. Accordingly, we decline to adopt a presumption of collateral consequences.

We are aware that one case since Spencer has held that a challenge to the length of an expired sentence was not moot because "the length of a sentence may have an important collateral effect or consequence on future sentencing." See United States v. Rivera, 164 F.3d 130, 132 (2d Cir. 1999) (citations omitted). However, the Rivera panel relied on pre-Spencer cases and, as we subsequently pointed out, did not consider Spencer's effect on the issue before it....