United States v. King

891 F.3d 868
CourtCourt of Appeals for the Ninth Circuit
DecidedJune 4, 2018
DocketNo. 17-10006
StatusPublished
Cited by10 cases

This text of 891 F.3d 868 (United States v. King) is published on Counsel Stack Legal Research, covering Court of Appeals for the Ninth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. King, 891 F.3d 868 (9th Cir. 2018).

Opinion

MUELLER, District Judge:

*869This appeal arises from a revocation of supervised release. In January 2017, after an evidentiary hearing on statutory rape allegations, the district court revoked Marcel King's term of supervised release and sentenced him to 24 months in prison. On appeal, King argues the district court violated his due process rights by excluding him from the courtroom for a portion of the minor victim's testimony and by admitting into evidence a hearsay report without live witness authentication.

King's appeal was fully briefed on October 31, 2017. On January 5, 2018, the Bureau of Prisons unconditionally released him from custody. His sentence is complete. The government argues King's appeal is now moot because King identifies no "ongoing" collateral consequences caused by his revocation. King counters that he does face collateral consequences, namely, the potential that his revocation charge, which involved a finding that he committed statutory rape, could require him to register as a sex offender and could affect his ability to visit his children.

Although King raises a novel collateral consequences argument, the consequences he identifies are, under controlling case law, inadequate to maintain his case here. As explained below, this appeal is MOOT.

I.

In the parole revocation context, the Supreme Court has held that without proof of ongoing collateral consequences from that revocation, an unconditional release from custody moots a defendant's challenge to his allegedly erroneous revocation. Spencer v. Kemna , 523 U.S. 1, 8-16, 118 S.Ct. 978, 140 L.Ed.2d 43 (1998). Our Circuit has not extended Spencer to the supervised release revocation context in a precedential opinion. In United States v. Palomba , 182 F.3d 1121, 1123 (9th Cir. 1999), we did cite Spencer in dismissing for lack of standing a defendant's challenge to the sentencing court's criminal history score calculation. In that case, because Palomba challenged only the length of his "now-completed" term of prison and supervised release-and not the "correctness of [his] conviction"-he lacked standing unless he could show the alleged miscalculation caused collateral consequences. Id. In United States v. Verdin , 243 F.3d 1174, 1177-79 (9th Cir. 2001), we distinguished Spencer because, in Verdin , the appellant was still facing conditions of supervision after his release from custody.1

Other Circuits to address the question have applied Spencer uniformly to appeals from supervised release revocations. See , e.g. , United States v. Hardy , 545 F.3d 280, 284 (4th Cir. 2008) ; United States v. Jackson , 523 F.3d 234, 241 (3d Cir. 2008) ;

*870United States v. Mazzillo , 373 F.3d 181, 182-83 (1st Cir. 2004) ; United States v. Meyers , 200 F.3d 715, 721 n.2 (10th Cir. 2000) ; United States v. Clark , 193 F.3d 845, 847-48 (5th Cir. 1999) (per curiam); United States v. Probber , 170 F.3d 345, 347-49 (2d Cir. 1999).

Supervised release differs from parole in some respects. Supervised release "follows a term of imprisonment"; parole conditionally "shorten[s]" a term of imprisonment. United States v. Kincade , 379 F.3d 813, 817 n.2 (9th Cir. 2004) (en banc); see also Morrissey v. Brewer , 408 U.S. 471, 477, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972) ("The essence of parole is release from prison, before the completion of sentence, on the condition that the prisoner abide by certain rules during the balance of the sentence."); Johnson v. United States , 529 U.S. 694, 697, 120 S.Ct. 1795, 146 L.Ed.2d 727 (2000) (defining supervised release as "a form of postconfinement monitoring" that "follow[s] imprisonment"). And supervised release is administered and enforced by a sentencing court; parole is generally administered by an independent commission or board. See id. at 696-97, 120 S.Ct. 1795 ; see generally

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891 F.3d 868, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-king-ca9-2018.