USA. v. Verdin

• Decision Date: 22 March 2001
• Docket Number: No. 00-50131,00-50131
• Citation: 243 F.3d 1174
• Parties: (9th Cir. 2001) UNITED STATES OF AMERICA,Plaintiff-Appellee, v. MARIO TELLEZ VERDIN,Defendant-Appellant
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1174

243 F.3d 1174 (9th Cir. 2001)

UNITED STATES OF AMERICA,Plaintiff-Appellee, v. MARIO TELLEZ VERDIN,Defendant-Appellant.

UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

No. 00-50131

Argued and Submitted October 12, 2000

Filed March 22, 2001

Gary P. Burcham and Troy Britt, Federal Defenders of San Diego, Inc., San Diego, California, for the defendant-appellant.

Mark Edelman, Assistant United States Attorney, San Diego,California, for the plaintiff-appellee.

Appeal from the United States District CourtFor the Southern District of California Jeffrey T. Miller, District Judge, Presiding. D.C. No. CR-99-01888-1-JTM

Before: Betty B. Fletcher, Sidney R. Thomas, and Kim McLane Wardlaw, Circuit Judges.

WARDLAW, Circuit Judge:

Mario Tellez Verdin appeals the sentence imposed after he pleaded guilty to one count of importation of marijuana, in violation of 21 U.S.C. SS 952 and 960. Because Verdin completed his term of incarceration and began his three-year period of supervised release one week before his appeal was argued, we must first decide whether, as the government urges, Verdin's appeal is moot. We hold that we have jurisdiction to entertain Verdin's appeal because a favorable resolution of the sentencing error he asserts could reduce the period of his current term of supervised release upon resentencing. We nevertheless reject Verdin's claim that the district court erred in imposing a two-level enhancement for obstruction of justice under United States Sentencing Commission, Guidelines Manual, S 3C1.1 (Nov. 1998) ("U.S.S.G. S 3C1.1") for providing a false identity to the probation officer, and affirm the sentence imposed by the district court.

I. BACKGROUND

On June 19, 1999, Verdin was arrested for attempting to drive a car carrying approximately 29.91 kilograms of marijuana into the United States from Mexico. Upon his arrest, he produced a copy of a birth certificate for David Wayne Bess, born on January 29, 1967, and a California Identification Card bearing Mr. Bess's name.

Government agents investigated Verdin's involvement in the offense and attempted to confirm his identity. The agents discovered two criminal records for David Wayne Bess located under separate FBI numbers. Verdin's fingerprints, however, did not match the fingerprints contained in either set of records. Nor did Verdin's fingerprints match any of the fingerprints in the databases maintained by the Immigration and Naturalization Service or the State of California Department of Justice.

On June 30, 1999, the grand jury returned a two count indictment charging Verdin (under the name David Wayne Bess) with importation of marijuana, in violation of 21 U.S.C. SS 952 and 960, and possession of marijuana with the intent to distribute, in violation of 21 U.S.C. S 841(a)(1). Verdin later pleaded guilty to count one of the indictment, and count two was dismissed. During the taking of his plea, Verdin adopted "David Wayne Bess" as his nom de guerre, testifying it was his "true name" and pleading guilty as Mr. Bess.

Following Verdin's guilty plea, the probation officer conducted a presentence interview. Verdin proceeded as David Wayne Bess. He provided additional details about his assumed family life. Verdin informed the probation officer that he was born on January 29, 1967, and that his parents were Charlie R. Bess and Maria Garcia Amarillas. He also reported that he was born as a twin, and that his brother, Daniel Bess, resided in Mexicali.

David Wayne Bess did indeed have a twin brother named Daniel Bess, whom the probation officer was able to contact. Daniel, who had just seen his brother eight months previously, provided an elaborate physical description of David, describing his height and weight and noting several distinctive tattoos, including a tattoo on his stomach of "Chicali," a large tattoo on his chest of an Hispanic woman wearing a sombrero and holding a gun, and a large tattoo on his back of the Virgin Mary. He also detailed his brother's criminal record, aspects of which were corroborated by rap sheets for David Wayne Bess (aka: David Garcia). That Verdin did not fit Bess's physical description, revealed most strikingly by a six to seven inch height difference and the lack of tattoos, was confirmed when Daniel viewed a photograph of Verdin and failed to recognize him as his brother.

Although the probation report dictated November 12, 1999 concluded that the defendant was not David Wayne Bess, the probation officer was still unable to ascertain Verdin's true identity. It was not until January 12, 2000, seven months after the arrest, that the probation officer learned Verdin's true name from defense counsel.

On February 7, 2000, the district court sentenced Verdin to eighteen months imprisonment and three years of supervised release. In reaching this sentence, the district court increased Verdin's base offense level by two levels for obstruction of justice under U.S.S.G. S 3C1.1, reasoning that Verdin "did obstruct and impede . . . the probation officer's investigationby providing a false identification to the probation officer," and that "[t]here is nothing more material than a defendant's true identity."

Verdin challenges his sentence on the sole ground that the district court erred in imposing a two-level increase for obstruction of justice.

II. Jurisdiction

At oral argument, Verdin's counsel informed the court that Verdin had been released from prison the prior week, on October 7, 2000, and had begun serving the first year of his three-year term of supervised release. Relying on Spencer v. Kemna, 523 U.S. 1 (1998), and United States v. Palomba, 182 F.3d 1121 (9th Cir. 1999), the government argues that because Verdin was released from prison, his appeal is moot. We disagree.

A case becomes moot when it no longer satisfies the case-or-controversy requirement of Article III, section 2, of the Constitution. Spencer, 523 U.S. at 7. The case-orcontroversy requirement demands that, through all stages of federal judicial proceedings, the parties "continue to have a personal stake in the outcome of the lawsuit." Id. (quotations omitted). "This means that . . . the plaintiff`must have suffered, or be threatened with, an actual injury traceable to the defendant and likely to be redressed by a favorable judicial decision.' " Id. (quoting Lewis v. Cont'l Bank Corp., 494 U.S. 472, 477 (1990)).

An incarcerated criminal defendant's challenge to his conviction satisfies Article III's case-or-controversy requirement because the ongoing incarceration "constitutes a concrete injury, caused by the conviction and redressable by invalidation of the conviction." Id. In cases involving a challenge to the criminal conviction itself, the existence of collateral consequences sufficient to satisfy the case-or-controversy requirement is presumed. Id. at 8. Criminal convictions carry with them a host of civil disabilities, such as a defendant's inability to engage in certain businesses, to vote, or to serve as a juror. See Carafas v. LaVallee, 391 U.S. 234, 237-38 (1968). As a result, it is an "obvious fact of life that most criminal convictions do in fact entail adverse collateral legal consequences" such that a presumption that they exist is justified. Sibron v. New York, 392 U.S. 40, 55 (1968).

A different case is presented, however, once the defendant completes his sentence. In Spencer, a habeas petitioner attacked not his convictions for felony stealing and burglary,but the lawfulness of the termination of his parole status. The Court held that Spencer's challenge to the parole revocation order became moot after he had finished serving the entire term of the sentence underlying the parole revocation. Spencer, 523 U.S. at 12-16. In so doing, the Court declined to extend the presumption of collateral consequences attending criminal convictions to challenges of parole revocation. The Court reasoned that, unlike a criminal conviction," `[n]o civil disabilities . . . result from a finding that an individual has violated his parole.' " Id. at 12 (quoting Lane v. Williams, 455 U.S. 624, 632 (1982)). As the Court stated in Lane, "At most, certain non-statutory consequences may occur; employment prospects, or the sentence imposed in a future criminal proceeding could be affected," but these "discretionary decisions" made by an employer or a sentencing judge "are not governed by the mere presence or absence of a recorded violation of parole." Lane, 455 U.S. at 632-33. Rather, "these decisions may take into consideration, and are more directly influenced by, the underlying conduct that formed the basis for the parole violation." Id. at 633.

The Court also rejected Spencer's claim that he had proved the existence of collateral consequences sufficient to satisfy the case-or-controversy requirement. Spencer, 523 U.S. at 1416. The Court disagreed with his assertion that the possibility that the revocation order could trigger an increase in his sentence in a future sentencing proceeding constituted an actual injury. Id. at 15. The Court found this potential collateral consequence too speculative for Article III purposes, stating, "A similar claim was likewise considered and rejected in Lane, because it was contingent upon respondents' violating the law, getting caught, and being convicted. `Respondents themselves are able -and indeed required by law -to prevent such a possibility from occurring.' " Id. (quoting Lane, 455 U.S. at 633 n.13).

In Palomba, the defendant also challenged not his conviction, but his sentence, as having been based on an incorrect criminal history calculation, which, he claimed, resulted in a lengthier sentence than should have been imposed. Palomba, 182 F.3d at 1122. At the time of his appeal, Palomba had finished the final supervised release portion of his sentence. Id. at 1123. We ruled that in light of Spencer's holding that collateral consequences cannot be presumed where a defendant has already served his...