United States v. Ramirez-Gonzalez

• Citation: 840 F.3d 240
• Decision Date: 26 October 2016
• Docket Number: No. 15-41065,15-41065
• Parties: United States of America, Plaintiff–Appellee, v. Rigoberto Ramirez–Gonzalez, Defendant–Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

840 F.3d 240

United States of America, Plaintiff–Appellee,

v.Rigoberto Ramirez–Gonzalez, Defendant–Appellant.

No. 15-41065

United States Court of Appeals, Fifth Circuit.

FILED October 26, 2016

John Richard Berry, Renata Ann Gowie, U.S. Attorney's Office, Houston, TX, for Plaintiff–Appellee.

Joseph A. Connors, III, Esq., Law Office of Joseph A. Connors, III, McAllen, TX, for Defendant–Appellant.

Before JOLLY, HAYNES, and GRAVES, Circuit Judges.

E. GRADY JOLLY, Circuit Judge:

Rigoberto Ramirez–Gonzalez pled guilty to illegal reentry following deportation. At sentencing, Ramirez–Gonzalez objected to a recommendation in the Presentence Investigation Report (“PSR”) that he be subject to an eight-level enhancement for having committed an “aggravated felony.” The district court agreed and sustained his objection. Ramirez–Gonzalez then requested that the court order the PSR substantively corrected to reflect the determination that he did not commit an aggravated felony. The district court refused, suggesting that its holding would be apparent in the Statement of Reasons attached to the judgment. Unsatisfied, Ramirez–Gonzalez filed this appeal, seeking substantive corrections to the PSR.

The Government points out that meanwhile Ramirez–Gonzalez has completed his sentence and has been deported to Mexico. It argues that, consequently, his appeal should be dismissed as moot.

Although we reject the Government's argument that the appeal is moot, we hold that the district court was not required to order any substantive corrections to the PSR. We affirm the district court's judgment.

I.

In October 2011, Rigoberto Ramirez–Gonzalez, a Mexican citizen, pled guilty to and was convicted of felony wire fraud. The scheme involved filing false claims to defraud an insurance company. Although each individual claim was small, many claims were filed. The aggregate amount of the claims was about $67,375. However, Ramirez–Gonzalez pled guilty based on only one instance of the fraud and the parties stipulated to an amount of $105 in actual damages to that victim. The presiding judge sentenced him to a year and a day in prison as well as three years of supervised release, and ordered him to pay $67,375 in restitution. He was deported to Mexico.

In August 2014, Ramirez–Gonzalez was found in the United States. The Government charged him with illegal reentry following deportation. He pled guilty.

The PSR recommended that he be sentenced under the eight-level “aggravated felony” enhancement of U.S.S.G. § 2L1.2(b)(1)(C), because the felony giving rise to his deportation involved fraud or deceit in which loss to the victim(s) exceeds $10,000. See U.S.S.G. § 2L1.2 cmt. 3(A); 8 U.S.C. § 1101(a)(43)(M). Ramirez–Gonzalez objected, arguing that because the amount of loss was $105, not $67,375, the enhancement should not apply. The district court sustained the objection to the eight-level aggravated felony enhancement. Instead, the judge imposed a four-level enhancement for “any other felony.” See U.S.S.G. § 2L1.2(b)(1)(D).¹

Ramirez–Gonzalez then asked that the judge order the PSR modified to reflect that he was not subject to an aggravated felony enhancement. The judge declined to do so, instead indicating in the Statement of Reasons issued alongside the judgment that he adopted the PSR “with the following changes ... In paragraph 12, the Court applied U.S.S.G. § 2L1.2(b)(1)(D) and increased the offense level by four (4) levels.” The judge found that the sentencing guideline range was 10 to 16 months and imposed a sentence of 10 months.

Ramirez–Gonzalez appealed, arguing that the district court erred by failing to order substantive corrections to the PSR.

Ramirez–Gonzalez has since completed his 10–month sentence, and has been deported to Mexico.

II.

The Government argues that Ramirez–Gonzalez's appeal must be dismissed as moot because his sentence has expired and he has been deported to Mexico.

A.

“Whether an appeal is moot is a jurisdictional matter, since it implicates the Article III requirement that there be a live case or controversy.” United States v. Heredia–Holguin , 823 F.3d 337, 340 (5th Cir. 2016) (en banc) (internal quotation marks and citation omitted). This court considers de novo the mootness of an appeal. United States v. Lares–Meraz , 452 F.3d 352, 355 (5th Cir. 2006).

“Under Article III's case-or-controversy requirement, to 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.” Heredia–Holguin , 823 F.3d at 340 (internal quotation marks, modification, and citation omitted). “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.” Id. (internal quotation marks and citation omitted).

“[I]f an event occurs while a case is pending on appeal that makes it impossible for the court to grant any effectual relief whatever to a prevailing party, the appeal must be dismissed.” Church of Scientology of Cal. v. United States , 506 U.S. 9, 12, 113 S.Ct. 447, 121 L.Ed.2d 313 (1992) (internal quotation marks and citation omitted). “As long as the parties have a concrete interest, however small, in the outcome of the litigation, the case is not moot.” Heredia–Holguin , 823 F.3d at 340 (internal quotation marks, modification, and citation omitted).

When an appellant serving a term of imprisonment challenges the validity of the underlying conviction, that challenge “always satisfies the case-or-controversy requirement, because the incarceration ... constitutes a concrete injury, caused by the conviction and redressable by invalidation of the conviction.” Spencer v. Kemna , 523 U.S. 1, 7, 118 S.Ct. 978, 140 L.Ed.2d 43 (1998). “Once the convict's sentence has expired, however, some concrete and continuing injury other than the now-ended incarceration or parole—some ‘collateral consequence’ of the conviction—must exist if the suit is to be maintained.” Id. ; see also United States v. Juvenile Male , 564 U.S. 932, 936, 131 S.Ct. 2860, 180 L.Ed.2d 811 (2011) (“In criminal cases, this [case-or-controversy] requirement means that a defendant wishing to continue his appeals after the expiration of his sentence must suffer some ‘continuing injury’ or ‘collateral consequence’ sufficient to satisfy Article III.”). In either case, “[w]hen the defendant challenges his underlying conviction , th[e Supreme] Court's cases have long presumed the existence of collateral consequences.” Juvenile Male , 564 U.S. at 936, 131 S.Ct. 2860 (emphasis in original).

“But when a defendant challenges only an expired sentence , no such presumption applies, and the defendant must bear the burden of identifying some ongoing collateral consequence that is traceable to the challenged portion of the sentence and likely to be redressed by a favorable judicial decision.” Id. (emphasis in original; internal quotation marks, modification, and citation omitted); see also Spencer , 523 U.S. at 14, 118 S.Ct. 978 (“declin [ing] to presume that collateral consequences adequate to meet Article III's injury-in-fact requirement resulted from petitioner's parole revocation”).

This Court, sitting en banc, recently held that deportation, by itself, did not moot the appeal of a deported defendant who had served his term of imprisonment but still was subject to an unexpired term of supervised release. Heredia–Holguin , 823 F.3d at 340. The Court abrogated the panel decision in United States v. Rosenbaum–Alanis , 483 F.3d 381, 383 (5th Cir. 2007), which had held that a convict's appeal of his term of supervised release was mooted by his deportation since he could not realistically appear for resentencing.

B.

Neither this Court nor any other appears to have considered the precise question at issue here—whether deportation moots an alien's appeal of a failure to correct his PSR. However, our precedent leads to the conclusion that it does not.

The allegedly-erroneous PSR implicates sufficient collateral consequences to preserve a live controversy. In United States v. Mackay , 757 F.3d 195 (5th Cir. 2014), this Court found that a clerical error in the PSR was “not harmless because it affects [the defendant's] substantial rights,” and that “[l]ike a judgment, the PSR determines the rights and obligations of the defendant going forward.” Id. at 198, 200.² This Court has squarely held that that deportation does not moot a challenge to an underlying judgment —as compared to a sentence standing alone—because of the continuing adverse collateral consequences stemming from a judgment. United States v. Villanueva–Diaz , 634 F.3d 844, 848–49 (5th Cir. 2011). To the extent that a PSR is “like a judgment,” Mackay , 757 F.3d at 198, a challenge to an erroneous PSR is not moot after deportation.

Furthermore, if, as Ramirez–Gonzalez argues, the PSR is so misleading that it could cause an immigration official to conclude that he was in fact convicted of an “aggravated felony,” the incorrect PSR could potentially impact his ability to legally reenter the country in the future under 8 U.S.C. § 1182(a)(9)(A). The Fifth Circuit has found that a determination that a crime was an “aggravated felony,” as compared to a non-aggravated felony, may give rise to sufficient collateral consequences to preserve a live controversy even where the appellant was deported. See Alwan v. Ashcroft , 388 F.3d 507, 511 & n. 3 (5th Cir. 2004).

The primary problem with the Government's mootness argument is that it fails to address mootness in this case in the light of the specific relief requested, namely, corrections to the PSR. Heredia–Holguin, Rosenbaum–Alanis, and the authorities discussed in those cases dealt primarily with challenges to defendants' sentences and terms of supervised release. Sentences and terms of supervised release are finite time periods...