United States v. Burl L. Bargeron

• Court: Court of Appeals for the Eleventh Circuit
• Decided: August 28, 2024
• Docket: 23-11100
• Status: Unpublished

Opinion

USCA11 Case: 23-11100 Document: 23-1 Date Filed: 08/28/2024 Page: 1 of 4

[DO NOT PUBLISH] In the United States Court of Appeals For the Eleventh Circuit

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No. 23-11100 Non-Argument Calendar ____________________

UNITED STATES OF AMERICA, Plaintiff-Appellee, versus BURL L. BARGERON,

Defendant-Appellant.

Appeal from the United States District Court for the Middle District of Georgia D.C. Docket No. 7:22-cr-00031-WLS-TQL-1 ____________________ USCA11 Case: 23-11100 Document: 23-1 Date Filed: 08/28/2024 Page: 2 of 4

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Before WILSON, LUCK, and BRASHER, Circuit Judges. PER CURIAM: Burl Bargeron appeals the revocation of his supervised re- lease, contending that his underlying conviction was unconstitu- tional. Because Bargeron did not challenge his conviction in a mo- tion under 28 U.S.C. § 2255, the sole vehicle for attacking his con- viction’s validity, we affirm. In 2010, Bargeron was convicted of possession of a firearm as a convicted felon and sentenced to 180 months’ imprisonment. Bargeron appealed his sentence without raising constitutional ar- guments. See generally United States v. Bargeron, 435 F. App’x 892 (11th Cir. 2011). In 2020, Bargeron was let out on supervised re- lease, but he quickly violated its terms. The district court revoked Bargeron’s supervised release, sentencing him to 24 months’ im- prisonment and 24 months of supervised release. Bargeron was re- leased from prison on August 21, 2024. This appeal follows. As an initial matter, we note that although Bargeron has been released from prison, his appeal is not moot. “A challenge to an imposed term of imprisonment is moot once that term has ex- pired.” United States v. Stevens, 997 F.3d 1307, 1310 n.1 (11th Cir. 2021) (citing United States v. Juvenile Male, 564 U.S. 932, 936 (2011); United States v. Serrapio, 754 F.3d 1312, 1317 (11th Cir. 2014)). “[B]ut where a defendant is still serving other aspects of his sentence, e.g., paying a fine or serving a term of supervised release, any appeal related to that aspect of his sentence is not moot.” Serrapio, 754 F.3d USCA11 Case: 23-11100 Document: 23-1 Date Filed: 08/28/2024 Page: 3 of 4

23-11100 Opinion of the Court 3

at 1317 (citing Dawson v. Scott, 50 F.3d 884, 886 n.2 (11th Cir. 1995)). Because Bargeron received a new term of supervised release at his resentencing, his attack on the underlying conviction may continue as a challenge to his current supervised release conditions. Moving to the crux of Bargeron’s appeal, we review a dis- trict court’s revocation of supervised release for an abuse of discre- tion. See United States v. Vandergrift, 754 F.3d 1303, 1307 (11th Cir. 2014). The former Fifth Circuit held that “the underlying validity of a conviction cannot be asserted as a defense in a probation rev- ocation proceeding.” United States v. Francischine, 512 F.2d 827, 828 (5th Cir. 1975). A court “can consider a petition for revocation of probation as if the underlying conviction were unquestioned, until such time as the conviction has been judicially set aside.” Id. “[T]he conviction’s validity may be collaterally attacked only in a separate proceeding under 28 U.S.C. § 2255.” Id. at 827. This case law binds us. See Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc) (adopting the former Fifth Circuit’s case law). And we have recognized this principle more recently too. See United States v. Almand, 992 F.2d 316, 317 (11th Cir. 1993) (cita- tions omitted) (“A sentence is presumed valid until vacated under § 2255.”); United States v. Hofierka, 83 F.3d 357, 363 (11th Cir. 1996) (citation omitted) (“As to [the defendant’s] argument that the con- viction was unconstitutional, a supervised release revocation pro- ceeding is not the proper forum in which to attack the conviction giving rise to the revocation.”), modified on reh’g, 92 F.3d 1108 (11th Cir. 1996); United States v. White, 416 F.3d 1313, 1316 (11th Cir. USCA11 Case: 23-11100 Document: 23-1 Date Filed: 08/28/2024 Page: 4 of 4

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2005) (“[A] defendant may not challenge, for the first time on ap- peal from the revocation of supervised release, his sentence for the underlying offense.”). Bargeron suggests that these precedents were abrogated by Johnson v. United States, 529 U.S. 694 (2000), under which he asserts that “a revocation sentence is a continuation of a sentence for the underlying offense.” But Johnson did not address the collateral at- tack issue raised here. See id.at 700–01. And Johnson didn’t change our approach to this issue. See White, 416 F.3d at 1316–18 (noting the collateral attack rule to supervised release revocation proceed- ings while later citing Johnson). Indeed, Johnson is consistent with our rule because a revocation sentence can be a continuation of a sentence for the underlying offense only if we assume that the un- derlying offense and sentence were valid. Thus, Bargeron’s argu- ment fails. AFFIRMED.