United States v. Heredia-Holguin

• Decision Date: 20 May 2016
• Docket Number: No. 14–10846.,14–10846.
• Citation: 823 F.3d 337
• Parties: UNITED STATES of America, Plaintiff–Appellee v. David HEREDIA–HOLGUIN, Defendant–Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

823 F.3d 337

UNITED STATES of America, Plaintiff–Appellee

v.David HEREDIA–HOLGUIN, Defendant–Appellant.

No. 14–10846.

United States Court of Appeals, Fifth Circuit.

May 20, 2016.

Brian W. McKay, Esq., Asst. U.S. Atty., James Wesley Hendrix, Asst. U.S. Atty., U.S. Attorney's Office, Dallas, TX, for Plaintiff–Appellee.

James Matthew Wright, Assistant Federal Public Defender, Federal Public Defender's Office, Amarillo, TX, James Matthew Wright, Assistant Federal Public Defender, Federal Public Defender's Office, Dallas, TX, Sherylynn Ann Kime–Goodwin, Assistant Federal Public Defender, Federal Public Defender's Office, Lubbock, TX, Monica F. Markley, U.S. Department of Labor, Newport News, VA, Monica F. Markley, Federal Public Defender's Office, Fort Worth, TX, for Defendant–Appellant.

Appeal from the United States District Court for the Northern District of Texas.

Before STEWART, Chief Judge, and JOLLY, DAVIS, JONES, SMITH, DENNIS, CLEMENT, PRADO, OWEN, ELROD, SOUTHWICK, HAYNES, GRAVES, HIGGINSON, and COSTA, Circuit Judges.

HAYNES

, Circuit Judge, joined by STEWART, Chief Judge, and DENNIS, PRADO, OWEN, ELROD, SOUTHWICK, GRAVES, and COSTA, Circuit Judges:

In this case, we address whether the deportation of a defendant renders that defendant's appeal of his term of supervised release moot. We hold that such deportation, by itself, does not render the appeal moot. We thus return this case to the panel for final disposition.

I. Facts and Proceedings

After pleading guilty to illegal reentry after deportation pursuant to a plea agreement, David Heredia–Holguin received a sentence of twelve months of imprisonment and three years of supervised release. The term of supervised release contains two special conditions: (1) he cannot illegally reenter the United States; and (2) he cannot consume alcohol or other intoxicants. Heredia–Holguin did not object to any part of his sentence.

Heredia–Holguin appealed, but before he could file his initial brief, he completed his prison sentence and was deported. Accordingly, Heredia–Holguin conceded that his appeal was moot under the existing case of United States v. Rosenbaum–Alanis, 483 F.3d 381, 383 (5th Cir.2007)

, and argued that his term of supervised release should be equitably vacated. In response, the government moved to dismiss the appeal as moot.

A panel of this court ordered supplemental briefing to address, among other things, whether Heredia–Holguin's appeal of his unexpired term of supervised release was mooted by his release from prison and deportation from the United States. In response, while Heredia–Holguin continued to press for equitable vacatur of his sentence, he also argued that this court should reconsider en banc the holding of Rosenbaum–Alanis.

In its decision, a panel of this court noted that “[t]wo Fifth Circuit decisions address the question of whether deportation moots a sentencing appeal. These decisions, however, arrived at opposite conclusions.” United States v. Heredia–Holguin, 789 F.3d 625, 627 (5th Cir.)

, reh'g en banc granted, 803 F.3d 745 (5th Cir.2015).¹ The panel further analyzed the two Fifth Circuit opinions—United States v. Lares–Meraz, 452 F.3d 352 (5th Cir.2006), and Rosenbaum–Alanis —and noted that it “ha[d] difficulty seeing the distinction that our court tried to draw in Rosenbaum–Alanis when it concluded that Lares–Meraz did not control.” Heredia–Holguin, 789 F.3d at 628 n.2. Regardless, the panel declined to resolve any perceived inconsistencies, concluding that Heredia–Holguin was seeking only equitable vacatur of his term of supervised release. Id. at 628

. The panel declined to vacate the remainder of Heredia–Holguin's sentence, determining equitable vacatur was not warranted on the facts of the case. Id. at 628–29.

Heredia–Holguin petitioned for rehearing en banc, seeking review of the following issues:

1. When an alien defendant is deported upon completing his term of imprisonment, but remains subject to a term of supervised release, is his sentencing appeal moot?

2. If an alien defendant's sentencing appeal is rendered moot by his involuntary deportation, is the alien entitled to have his sentence—or at least the remaining term of supervised release—vacated under the doctrine of equitable vacatur?

We granted rehearing, and because we answer the first question in the negative, we need not address the second.

II. Discussion

A. Mootness

“Whether an appeal is moot is a jurisdictional matter, since it implicates the Article III requirement that there be a live case or controversy.” Bailey v. Southerland, 821 F.2d 277, 278 (5th Cir.1987)

. Under Article III's case-or-controversy requirement, “[t]o invoke the jurisdiction of a federal court, a litigant must have suffered, or be threatened with, an actual injury traceable to the defendant and likely to be redressed by a favorable judicial decision.” Lewis v. Cont'l Bank Corp., 494 U.S. 472, 477, 110 S.Ct. 1249, 108 L.Ed.2d 400 (1990). “This case-or-controversy requirement subsists through all stages of federal judicial proceedings, trial and appellate.... The parties must continue to have a personal stake in the outcome of the lawsuit.” Spencer v. Kemna, 523 U.S. 1, 7, 118 S.Ct. 978, 140 L.Ed.2d 43 (1998) (quoting Lewis, 494 U.S. at 477–78, 110 S.Ct. 1249 ).

“A case becomes moot only when it is impossible for a court to grant any effectual relief whatever to the prevailing party.” Knox v. Serv. Emps. Int'l Union, Local 1000, ––– U.S. ––––, 132 S.Ct. 2277, 2287, 183 L.Ed.2d 281 (2012)

(quoting City of Erie v. Pap's A.M., 529 U.S. 277, 287, 120 S.Ct. 1382, 146 L.Ed.2d 265 (2000) ). “[A]s long as the parties have a concrete interest, however small, in the outcome of the litigation, the case is not moot.” Id. (alteration in original) (quoting Ellis v. Bhd. of Ry., Airline & S.S. Clerks, 466 U.S. 435, 442, 104 S.Ct. 1883, 80 L.Ed.2d 428 (1984) ). With these general mootness principles in mind, we turn to the case before us.

On the face of his appeal, Heredia–Holguin is claiming an error as to an aspect of his sentence—the term of supervised release—that is still in effect. Recent amendments to the sentencing guidelines state that “ordinarily” a term of supervised release will not be ordered for a deportable alien, and the application notes provide that a district court may order supervised release in such a scenario for “deterrence and protection” based on the facts of the case. U.S. Sentencing Guidelines Manual (U.S.S.G.) § 5D1.1

& cmt. n.5. (U.S. Sentencing Comm'n 2015).²

Thus, the Sentencing Guidelines anticipate that such a term of supervised release could have a “deterrent” effect, which supports the conclusion that Heredia–Holguin has an interest, “however small,” in challenging it. As the Sentencing Guidelines make clear, a term of supervised release imposed on a defendant subject to deportation must have a meaning. It cannot be imposed as a casual or routine formality. If supervised release was imposed as a measure of deterrence, to the extent the supervised release was improper, the defendant is being improperly deterred. Courts have determined that deterrence is sufficient to allege an injury for the purposes of standing in other contexts. See, e.g., Doran v. 7–Eleven, Inc., 524 F.3d 1034, 1041 (9th Cir.2008)

( “Allegations that a plaintiff has visited a public accommodation on a prior occasion and is currently deterred from visiting that accommodation by accessibility barriers establish that a plaintiff's injury is actual or imminent.”); Clapper v. Amnesty Int'l USA, ––– U.S. ––––, 133 S.Ct. 1138, 1152, 185 L.Ed.2d 264 (2013) (discussing how a statute's chilling effect on speech could create a justiciable controversy, but finding on the facts of the case that the chilling effect was too remote); cf.

Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 186, 120 S.Ct. 693, 145 L.Ed.2d 610 (2000) (“To the extent that [civil penalties] encourage defendants to discontinue current violations and deter them from committing future ones, they afford redress to citizen plaintiffs who are injured or threatened with injury as a consequence of ongoing unlawful conduct.”). It makes little sense to continue to allow a district court to impose a term of supervised release on a deportable alien but prevent him from being able to challenge that term of supervised release.

The closest Supreme Court case on point supports a conclusion that deportation of the defendant does not moot the challenge to his unexpired term of supervised release. See United States v. Campos–Serrano, 404 U.S. 293, 92 S.Ct. 471, 30 L.Ed.2d 457 (1971)

. While in Mexico, Heredia–Holguin is subject to at least one of the terms of his supervised release—that he not enter the United States illegally. Although such entry is already prohibited by law, the Court in Campos–Serrano held that a since-deported defendant's appeal was not moot because the conditions of his probation were “that he return to Mexico and not return to the United States illegally[,] ... [and s]hould he violate those conditions [by illegally reentering], he will be subject to imprisonment under his continuing criminal sentence.” Id. at 294 n.2, 92 S.Ct. 471

. Although it is true that Campos–Serrano was challenging the conviction itself, which has sufficient collateral consequences to allow an appeal even when the sentence has expired, the Court made no mention of collateral consequences. Rather, the dispositive fact was that he was “still under the sentence.” Id. Nor was the probation sentence itself, which included a condition of leaving the country, the only basis for the defendant being outside the United States. A “previous order” of deportation also required his removal. Id.

Further, even though illegal reentry is already prohibited by law, as a condition of supervised release, it subjects him to the procedures applicable to revoking supervised release, which among other diminished rights only require proof by a preponderance of the evidence, as...