United States v. Vega

• Decision Date: 04 June 2020
• Docket Number: No. 16-41663,16-41663
• Citation: 960 F.3d 669
• Parties: UNITED STATES of America, Plaintiff - Appellee v. Alejandro Calzada VEGA, also known as Alejandro Vegas, Defendant - Appellant
• Court: U.S. Court of Appeals — Fifth Circuit

960 F.3d 669

UNITED STATES of America, Plaintiff - Appellee

v.Alejandro Calzada VEGA, also known as Alejandro Vegas, Defendant - Appellant

No. 16-41663

United States Court of Appeals, Fifth Circuit.

FILED June 4, 2020

Andrew R. Gould, Carmen Castillo Mitchell, Assistant U.S. Attorneys, U.S. Attorney's Office, Southern District of Texas, Houston, TX, for Plaintiff - Appellee

Marjorie A. Meyers, Federal Public Defender, Kayla R. Gassmann, Michael Lance Herman, Assistant Federal Public Defenders, Federal Public Defender's Office, Southern District of Texas, Houston, TX, for Defendant - Appellant

Before CLEMENT, SOUTHWICK, and HIGGINSON, Circuit Judges.

STEPHEN A. HIGGINSON, Circuit Judge:

In 2016, Alejandro Calzada Vega pleaded guilty to one count of illegal reentry after deportation in violation of 8 U.S.C. § 1326. Vega’s presentence report determined that his 2004 Michigan conviction for home invasion in the second degree qualified as an "aggravated felony" under 8 U.S.C. § 1101(a)(43)(F) (defining "aggravated felony" as a "crime of violence" under 18 U.S.C. § 16 ). Therefore, using the 2015 United States Sentencing Guidelines, the PSR applied an eight-level sentencing enhancement under U.S.S.G. § 2L1.2(b)(1)(C). See U.S.S.G. § 2L1.2, cmt. n.3(A) ("For purposes of subsection (b)(1)(C), ‘aggravated felony’ has the meaning given that term in ... 8 U.S.C. § 1101(a)(43) ... without regard to the date of conviction for the aggravated felony."). Based on the same 2004 conviction, the PSR also determined that Vega was subject to the 20-year statutory maximum sentence in 8 U.S.C. § 1326(b)(2), which increases the maximum sentence for an illegal reentry defendant "whose removal was subsequent to a conviction for commission of an aggravated felony."

At sentencing on December 7, 2016, the district court overruled Vega’s objections to the PSR’s classification of his 2004 conviction and sentenced him to a within-guidelines sentence of 26 months of imprisonment, followed by a three-year term of supervised release. The district court entered judgment under 8 U.S.C. §§ 1326(a) and 1326(b)(2).

Vega filed a notice of appeal in December 2016. In his initial brief, he argued that his 2004 conviction did not have an element of force, so it therefore does not qualify as a "crime of violence" under 18 U.S.C. § 16(a). He also argued that § 16(b) is unconstitutionally vague, though he acknowledged that this argument was foreclosed by Supreme Court precedent at the time that he filed his brief. Because he maintained that his 2004 conviction did not qualify as a "crime of violence," he argued that the district court erred when it found that he had previously been convicted of an "aggravated felony"—a conclusion that led to his eight-level sentence enhancement and the district court’s entry of judgment under § 1326(b)(2) instead of § 1326(b)(1).

During the pendency of this appeal, the court twice suspended briefing to await guidance from the Supreme Court in two related cases: Sessions v. Dimaya , ––– U.S. ––––, 138 S. Ct. 1204, 200 L.Ed.2d 549 (2018), and United States v. Herrold , ––– U.S. ––––, 139 S. Ct. 2712, 204 L.Ed.2d 1107 (2019) (mem.). In late 2017, Vega was released from custody and deported. His three-year period of supervised release will not expire until November 20, 2020.

Both parties now agree that the merits of Vega’s appeal are foreclosed by the Supreme Court’s decision in Quarles v. United States , ––– U.S. ––––, 139 S. Ct. 1872, 204 L.Ed.2d 200 (2019). The only issue in dispute is whether Vega’s release from custody mooted his challenge to the PSR’s calculation of his sentencing guidelines—a threshold jurisdictional issue.

Applying the binding precedent of United States v. Lares-Meraz , 452 F.3d 352 (5th Cir. 2006), we hold that Vega’s appeal of the eight-level sentence enhancement is not moot because he remains subject to a term of supervised release. We therefore reach the merits of his appeal, and we AFFIRM.

I.

In the district court, Vega objected to his guidelines enhancement under § 2L1.2(b)(1)(C), but he did not specifically object to the district court’s entry of judgment under § 1326(b)(2). Nevertheless, because his objection to the sentencing enhancement relied on the same argument that he now makes about the application of § 1326(b)(2), that objection was sufficient to preserve his challenge to the statutory basis of his conviction. See United States v. Valle-Ramirez , 908 F.3d 981, 984 (5th Cir. 2018). Like the defendant in Valle-Ramirez , Vega’s challenges are based on his argument that his 2004 conviction does not qualify as an "aggravated felony." See Id. Accordingly, we review the district court’s characterization of his 2004 conviction de novo . See id. ; Patel v. Mukasey , 526 F.3d 800, 802 (5th Cir. 2008).

"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) (quoting Bailey v. Southerland , 821 F.2d 277, 278 (5th Cir. 1987) ). We review the question of mootness de novo , raising the issue sua sponte if necessary. Lares-Meraz , 452 F.3d at 355. In order to maintain jurisdiction, the court must have before it an actual case or controversy at all stages of the judicial proceedings. See Spencer v. Kemna , 523 U.S. 1, 7, 118 S.Ct. 978, 140 L.Ed.2d 43 (1998). "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 , 567 U.S. 298, 307, 132 S.Ct. 2277, 183 L.Ed.2d 281 (2012) (internal quotation marks and citation omitted). "[A]s long as the parties have a concrete interest, however small, in the outcome of the litigation, the case is not moot." Id. at 307–08, 132 S.Ct. 2277 (alteration in original) (quoting Ellis v. Railway Clerks , 466 U.S. 435, 442, 104 S.Ct. 1883, 80 L.Ed.2d 428 (1984) ).

II.

Vega advances two challenges to his sentence. First, he argues that the district court erred when it applied an eight-level sentencing enhancement based on its conclusion that Vega had previously been convicted of an aggravated felony. Second, he argues that the district court erred when it entered judgment under § 1326(b)(2).

The parties agree that Vega’s release from prison does not moot his statutory challenge. Regardless of Vega’s custody status, "whether his judgment reflects a conviction under § 1326(b)(1) or (b)(2) could have consequences." United States v. Valle-Ramirez , 908 F.3d 981, 984 n.4 (5th Cir. 2018). Because a (b)(2) conviction carries its own collateral consequences, we have held that a defendant may challenge the statutory basis of his judgment of conviction even when he is no longer in custody. Id. ; see also United States v. Ovalle-Garcia , 868 F.3d 313, 314 (5th Cir. 2017).

However, the parties dispute whether Vega’s release from custody and deportation moot his challenge to his sentencing enhancement. A live case or controversy is necessary to invoke federal jurisdiction. See Heredia-Holguin , 823 F.3d at 340. Thus, the court must evaluate mootness on a claim-by-claim basis to determine whether each claim satisfies the constitutional requirements for Article III jurisdiction. See In re Pac. Lumber Co. , 584 F.3d 229, 251 (5th Cir. 2009) (evaluating mootness for each claim); see also In re Scopac , 624 F.3d 274, 282 (5th Cir. 2010) (same).¹ Though Vega remains subject to an active term of supervised release, he does not argue that the district court erred when it imposed a three-year period of supervised release; instead, his appeal of the sentencing enhancement challenges the term of imprisonment imposed by the district court.

In Lares-Meraz , we held that a defendant’s appeal of his sentence is not moot as long as he remains subject to an active period of supervised release. 452 F.3d at 355. Like Vega, the defendant in Lares-Meraz had been released from custody and deported. Id. at 353. At the time of his direct appeal of his sentence, he remained subject to a three-year term of supervised release. Id. We held that Lares-Meraz’s "subjection to the terms of supervised release satisfy an ongoing consequence that is a sufficient legal interest to support Article III’s case or controversy requirement." Id. at 355. If the district court determined that he had been improperly sentenced, it would "have the authority to modify [the] conditions of supervised release ... or the authority to terminate obligations of supervised release." Id. ; see also United States v. Johnson , 529 U.S. 53, 60, 120 S.Ct. 1114, 146 L.Ed.2d 39 (2000) (noting that the trial court may modify conditions of supervised release or terminate supervised release obligations if certain conditions are met). The possibility of relief thus demonstrated that Lares-Meraz’s claim was not moot, even though his appeal did not challenge the term of supervised release itself. In another published case, Johnson v. Pettiford , 442 F.3d 917 (5th Cir. 2006), we echoed the reasoning of Lares-Meraz , holding that a defendant’s release from custody did not moot his habeas petition under 28 U.S.C. § 2241 because there remained a "possibility that the district court may alter [his] period of supervised release ... if it determines that he has served excess prison time." Id. at 918.²

Though the government does not acknowledge the published authority of Lares-Meraz , it argues that our 2016 en banc decision in Heredia-Holguin requires us to find that Vega’s appeal is now moot. In Heredia-Holguin , we held that a defendant’s deportation and release from custody did not moot his challenge to his term of supervised release. 823 F.3d at 343. Unlike Vega, the defendant in Heredia-Holguin challenged the imposition of supervised release itself, arguing that the district court erred when it sentenced him to three years of supervised release. Id. at 339–40. We acknowledged this...