United States v. Dennis Sittman

• Court: Court of Appeals for the Ninth Circuit
• Decided: August 6, 2021
• Docket: 20-15125
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS AUG 6 2021 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 20-15125

Plaintiff-Appellee, D.C. Nos. 1:19-cv-00311-ACK-KJM v. 1:91-cr-00921-ACK-1

DENNIS J. SITTMAN, MEMORANDUM* Defendant-Appellant.

Appeal from the United States District Court for the District of Hawaii Alan C. Kay, District Judge, Presiding

Submitted August 4, 2021** San Francisco, California

Before: THOMAS, Chief Judge, and HAWKINS and McKEOWN, Circuit Judges.

Dennis Sittman appeals the district court’s denial of his petition for a writ of

error coram nobis and/or a writ of audita querela. We have jurisdiction under 28

U.S.C. § 1291. Reviewing de novo, see United States v. Riedl, 496 F.3d 1003,

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). 1005 (9th Cir. 2007); United States v. Hovsepian, 359 F.3d 1144, 1153 (9th Cir.

2004) (en banc), we affirm.

“A person seeking a writ of audita querela must show . . . a legal defect in

the underlying sentence or conviction.” Hovsepian, 359 F.3d at 1154 (citation and

internal quotation marks omitted). To establish entitlement to a writ of error coram

nobis, Sittman must establish that “(1) a more usual remedy is not available;

(2) valid reasons exist for not attacking the conviction earlier; (3) adverse

consequences exist from the conviction sufficient to satisfy the case or controversy

requirement of Article III; and (4) the error is of the most fundamental character.”

Riedl, 496 F.3d at 1006 (quoting Hirabayashi v. United States, 828 F.2d 591 (9th

Cir. 1987)).

Thus, for Sittman to receive relief, he must establish that he faces collateral

consequences. See id.; United States v. Fonseca-Martinez, 36 F.3d 62, 65 (9th Cir.

1994) (per curiam) (considering the collateral consequences “sufficient to justify

issuance of the writ” of audita querela); see also Doe v. INS, 120 F.3d 200, 203 n.4

(9th Cir. 1997) (explaining that the difference between the writs “is one of timing,

not substance”). He has not done so. Because only the length of the sentence is at

issue, not the correctness of the conviction itself, there is no presumption of

collateral consequences. See United States v. Juv. Male, 564 U.S. 932, 936 (2011)

(“When a defendant challenges only an expired sentence, no such presumption

2 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.” (cleaned up)). Sittman

has fully served the sentence that he challenges. On appeal, he identifies only the

allegedly excess time served, but granting his petition would have no effect on that

consequence. Any excess time served—if there were any—would not have been

credited against the supervised release time Sittman was serving at the time he

filed this petition, which was for a different offense. See United States v. Johnson,

529 U.S. 53, 59 (2000) (“The objectives of supervised release would be unfulfilled

if excess prison time were to offset and reduce terms of supervised release”).

AFFIRMED.