United States v. Beiza-Hernandez

• Decision Date: 28 February 2014
• Docket Number: D.C. Docket No. 7:12-cr-00292-CLS-JEO-1,No. 13-12562,13-12562
• Parties: UNITED STATES OF AMERICA, Plaintiff-Appellee, v. DOMINGO BEIZA-HERNANDEZ, a.k.a. Domingo Beiza Hernandez, a.k.a. Domingo B. Hernandez, a.k.a. Daniel Dias Duran, Defendant-Appellant.
• Court: U.S. Court of Appeals — Eleventh Circuit

UNITED STATES OF AMERICA, Plaintiff-Appellee,
v.
DOMINGO BEIZA-HERNANDEZ, a.k.a. Domingo Beiza Hernandez,
a.k.a. Domingo B. Hernandez, a.k.a. Daniel Dias Duran, Defendant-Appellant.

No. 13-12562
D.C. Docket No. 7:12-cr-00292-CLS-JEO-1

UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT

February 28, 2014

[DO NOT PUBLISH]
Non-Argument Calendar
Appeal from the United States District Court for the Northern District of Alabama

Before TJOFLAT, HULL and MARCUS, Circuit Judges.

PER CURIAM:

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Domingo Beiza-Hernandez appeals his sentence of time served after pleading guilty to illegal reentry into the United States by a deported alien, in violation of 8 U.S.C. § 1326(a). On appeal, he challenges the District Court's application of an eight-level increase to his offense level based on the court's finding that his prior North Carolina conviction of possession with intent to sell or deliver more than 28 but less than 200 grams of cocaine (the "North Carolina offense"), for which he was sentenced to 8 to 10 months' imprisonment, qualified as an aggravated felony under U.S.S.G. § 2L1.2(b)(1)(C). He argues that the district court erred in treating the North Carolina offense as an aggravated felony because, under North Carolina's then-mandatory sentencing scheme, he could not have received a sentence in excess of 12 months' imprisonment. In addition to arguing that the North Carolina offense qualified as an aggravated felony, the government argues that Beiza-Hernandez's appeal is moot because he has already served his sentence of imprisonment and been removed from the United States.

I.

We review whether a case is moot de novo. United States v. Al-Arian, 514 F.3d 1184, 1189 (11th Cir. 2008). Before assuming jurisdiction over any case, we must resolve any question of mootness. Id.

"Article III of the Constitution limits the jurisdiction of the federal courts to the consideration of 'Cases' and 'Controversies.'" Id. "[A]n action that is moot

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cannot be characterized as an active case or controversy. A case is moot when the issues presented are no longer 'live' or the parties lack a legally cognizable interest in the outcome." Al Najjar v. Ashcroft, 273 F.3d 1330, 1335-36 (11th Cir. 2001) (quotations, alterations, and citation omitted). "The fundamental question with respect to mootness is whether events have occurred subsequent to the filing of an appeal that deprive the court of the ability to give the appellant meaningful relief." Al-Arian, 514 F.3d at 1189 (quotations, alterations, and ellipses omitted). We recognize three general exceptions to the mootness doctrine: "(1) the issues are capable of repetition, yet evading review; (2) an appellant has taken all steps necessary to perfect the appeal and to preserve the status quo; and (3) the trial court's order will have possible collateral legal consequences." Wakefield v. Church of Scientology of Cal., 938 F.2d 1226, 1229 (11th Cir. 1991). In United States v. Farmer, 923 F.2d 1557, 1568 (11th Cir. 1991), an appeal raising sentencing issues, we held the appeal moot because the appellant had completed his sentence and advanced no argument that there may be other benefits in having his sentence reduced.

Under the Immigration and Nationality Act ("INA"), an alien may avoid removal from the United States and adjust his status to that of an alien lawfully admitted for permanent residence if the alien: (1) "has been physically present in the United States for a continuous period of not less than 10 years immediately

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preceding the date of such application"; (2) "has been a person of good moral character during such period"; (3) "has not been convicted of an offense under [8 U.S.C. §§ 1182(a)(2), 1227(a)(2), or 1227(a)(3)]"; and (4) "establishes that removal would result in exceptional and extremely unusual hardship to the alien's spouse, parent, or child, who is a citizen of the United States or an alien lawfully admitted for permanent residence." INA § 240A(b)(1), 8 U.S.C. § 1229b(b)(1). An alien convicted of a violation of "any law or regulation of a State, the United States, or a foreign country relating to a controlled substance" is inadmissible and ineligible for cancellation of removal. 8 U.S.C. § 1182(a)(2)(A)(i)(II); see INA § 240A(b)(1)(C), 8 U.S.C. § 1229b(b)(1)(C). An alien is also ineligible for cancellation of removal if he is convicted of an aggravated felony after admission. 8 U.S.C. § 1227(a)(2)(A)(iii); see INA § 240A(b)(1)(C), 8 U.S.C. § 1229b(b)(1)(C).

In United States v. Orrega, we held that that the government's appeal of an alien's sentence was not rendered moot by his removal from the country. 363 F.3d 1093, 1095-96 (11^th Cir. 2004). There continued to be an active controversy in the case because Orrega might, at some point, reenter the United States. Id. at 1095. We noted that "[a]lthough not dispositive, this possibility of re-entry is made more likely by the fact...