Appellate Case: 23-1231 Document: 010111010864 Date Filed: 03/06/2024 Page: 1 FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT March 6, 2024 _________________________________ Christopher M. Wolpert Clerk of Court UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 23-1231 (D.C. No. 1:17-CR-00355-RM-1) KILO DENZEL PACE, (D. Colo.)
Defendant - Appellant. _________________________________
ORDER AND JUDGMENT* _________________________________
Before TYMKOVICH, EID, and ROSSMAN, Circuit Judges. _________________________________
In 2018 Kilo Denzel Pace pleaded guilty to one count of felon in possession of
a firearm in violation of 18 U.S.C. § 922(g)(1). The district court sentenced Pace to
fifteen months’ imprisonment, to be followed by a term of three years of supervised
release. The district court revoked Pace’s supervised release in 2021 and sentenced
him to six months’ imprisonment and eighteen additional months’ supervised release.
In 2023 Pace violated the terms of his second supervised release, and the district
* After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist in the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument. This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. It may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. Appellate Case: 23-1231 Document: 010111010864 Date Filed: 03/06/2024 Page: 2
court once again revoked supervised release. The district court sentenced Pace to a
term of nine months’ imprisonment, not to be followed by further supervised release.
At that point, Pace had built up a significant bank of “jail credit” for time he had
previously spent imprisoned that had not been credited toward any sentence. R. Vol.
II at 5. Pace was thus effectively released from custody upon sentencing because his
jail credit consumed the entirety of the nine-month sentence. Anders Br. at 3.
Pace appealed. However, his appellate counsel submitted an Anders brief,
stating that there are no non-frivolous claims to be brought on appeal and seeking
leave to withdraw from representing Pace. See Anders v. California, 386 U.S. 738,
744 (1967). Upon an independent review of the record, we agree that there are no
non-frivolous arguments that Pace may bring on appeal, as the expiration of his
sentence has rendered his appeal moot. We thus grant counsel’s motion and dismiss
the appeal.
I.
In September 2017, Pace was indicted on one count of felon in possession of a
firearm. See 18 U.S.C. § 922(g)(1). Pace pleaded guilty to the count in the
indictment on December 4, 2017. The district court sentenced Pace on March 2,
2018 to fifteen months’ imprisonment in the Federal Bureau of Prisons (“BOP”) to be
followed by three years of supervised release. Pace appealed his initial sentence, but
the appeal was voluntarily dismissed. See United States v. Pace, No. 18-1099.
Following his release from prison in October of 2018, Pace struggled to adhere
to the terms of his supervised release. On August 5, 2021, he appeared before the
2 Appellate Case: 23-1231 Document: 010111010864 Date Filed: 03/06/2024 Page: 3
district court for a supervised release violation hearing, where he admitted to
violating several conditions of his supervised release. The district court sentenced
Pace to six months’ imprisonment to be followed by an eighteen-month term of
supervised release. Because Pace had accrued significant jail credit time—seventeen
months at that point—he began his term of supervised release immediately.
Pace once again struggled to stay within the bounds of his supervised release.
On February 9, 2022, Probation Officer Stephanie Hartz filed a petition for a warrant,
alleging that Pace had committed seven violations of his supervised release. See R.
Vol. I at 11–13. These violations included possession and use of marijuana, failure
to participate in treatment and testing, failure to work regularly, and failure to notify
the probation office of a change in residence. At the July 14, 2023 revocation
hearing, Pace admitted to the violations alleged in the petition for a warrant. The
resulting guideline range was five to eleven months’ imprisonment. The district
court sentenced Pace to nine months’ imprisonment, with no term of supervised
release to follow. The court requested in its judgment that “[t]o the extent possible
the BOP will expedite the calculation and designation, because it is the Court’s belief
that [Pace] has overserved time available to him that will consume the entirety of the
sentence that was just imposed.” R. Vol. I at 21. Per Pace’s counsel, Pace was
released from custody without ever being transferred to a BOP facility. Anders Br. at
3–4. It is uncontested that Pace has finished serving the sentence imposed in this
case.
3 Appellate Case: 23-1231 Document: 010111010864 Date Filed: 03/06/2024 Page: 4
Pace wishes to challenge the revocation of his supervised release and
requested his counsel file this appeal. See Anders Br. at 4–7. Counsel then filed the
Anders brief before us. Neither Pace nor the government submitted a response brief.
II.
Appellate counsel’s “role as advocate requires that he support his client’s
appeal to the best of his ability.” Anders, 386 U.S. at 744. However, when counsel
for the defendant has found the case to be “wholly frivolous, after a conscientious
examination of it, he should so advise the court and request permission to withdraw.”
Id. Once counsel files an Anders brief, this Court must conduct a “full examination
of all the proceedings, to decide whether the case is wholly frivolous.” Id. If, after
performing an independent review of the record, we agree with counsel, then we may
grant his request to withdraw and dismiss the appeal. Id. In this case, we agree with
counsel.
Pace has no non-frivolous grounds for appeal because the case is moot.
Article III of the United States Constitution extends our jurisdiction only to cases or
controversies. U.S. CONST. art. III, § 2, cl. 1. “[W]hen the injury for which an
appellant seeks judicial relief disappears or is resolved extrajudicially prior to the
appellate court’s decision, the appellant can no longer satisfy the Article III case or
controversy jurisdictional requirement and the appeal is moot.” United States v.
Meyers, 200 F.3d 715, 718 (10th Cir. 2000) (citing Burke v. Barnes, 479 U.S. 361,
363 (1987)). An appeal challenging a sentence is rendered moot when the defendant
Free access — add to your briefcase to read the full text and ask questions with AI
Appellate Case: 23-1231 Document: 010111010864 Date Filed: 03/06/2024 Page: 1 FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT March 6, 2024 _________________________________ Christopher M. Wolpert Clerk of Court UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 23-1231 (D.C. No. 1:17-CR-00355-RM-1) KILO DENZEL PACE, (D. Colo.)
Defendant - Appellant. _________________________________
ORDER AND JUDGMENT* _________________________________
Before TYMKOVICH, EID, and ROSSMAN, Circuit Judges. _________________________________
In 2018 Kilo Denzel Pace pleaded guilty to one count of felon in possession of
a firearm in violation of 18 U.S.C. § 922(g)(1). The district court sentenced Pace to
fifteen months’ imprisonment, to be followed by a term of three years of supervised
release. The district court revoked Pace’s supervised release in 2021 and sentenced
him to six months’ imprisonment and eighteen additional months’ supervised release.
In 2023 Pace violated the terms of his second supervised release, and the district
* After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist in the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument. This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. It may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. Appellate Case: 23-1231 Document: 010111010864 Date Filed: 03/06/2024 Page: 2
court once again revoked supervised release. The district court sentenced Pace to a
term of nine months’ imprisonment, not to be followed by further supervised release.
At that point, Pace had built up a significant bank of “jail credit” for time he had
previously spent imprisoned that had not been credited toward any sentence. R. Vol.
II at 5. Pace was thus effectively released from custody upon sentencing because his
jail credit consumed the entirety of the nine-month sentence. Anders Br. at 3.
Pace appealed. However, his appellate counsel submitted an Anders brief,
stating that there are no non-frivolous claims to be brought on appeal and seeking
leave to withdraw from representing Pace. See Anders v. California, 386 U.S. 738,
744 (1967). Upon an independent review of the record, we agree that there are no
non-frivolous arguments that Pace may bring on appeal, as the expiration of his
sentence has rendered his appeal moot. We thus grant counsel’s motion and dismiss
the appeal.
I.
In September 2017, Pace was indicted on one count of felon in possession of a
firearm. See 18 U.S.C. § 922(g)(1). Pace pleaded guilty to the count in the
indictment on December 4, 2017. The district court sentenced Pace on March 2,
2018 to fifteen months’ imprisonment in the Federal Bureau of Prisons (“BOP”) to be
followed by three years of supervised release. Pace appealed his initial sentence, but
the appeal was voluntarily dismissed. See United States v. Pace, No. 18-1099.
Following his release from prison in October of 2018, Pace struggled to adhere
to the terms of his supervised release. On August 5, 2021, he appeared before the
2 Appellate Case: 23-1231 Document: 010111010864 Date Filed: 03/06/2024 Page: 3
district court for a supervised release violation hearing, where he admitted to
violating several conditions of his supervised release. The district court sentenced
Pace to six months’ imprisonment to be followed by an eighteen-month term of
supervised release. Because Pace had accrued significant jail credit time—seventeen
months at that point—he began his term of supervised release immediately.
Pace once again struggled to stay within the bounds of his supervised release.
On February 9, 2022, Probation Officer Stephanie Hartz filed a petition for a warrant,
alleging that Pace had committed seven violations of his supervised release. See R.
Vol. I at 11–13. These violations included possession and use of marijuana, failure
to participate in treatment and testing, failure to work regularly, and failure to notify
the probation office of a change in residence. At the July 14, 2023 revocation
hearing, Pace admitted to the violations alleged in the petition for a warrant. The
resulting guideline range was five to eleven months’ imprisonment. The district
court sentenced Pace to nine months’ imprisonment, with no term of supervised
release to follow. The court requested in its judgment that “[t]o the extent possible
the BOP will expedite the calculation and designation, because it is the Court’s belief
that [Pace] has overserved time available to him that will consume the entirety of the
sentence that was just imposed.” R. Vol. I at 21. Per Pace’s counsel, Pace was
released from custody without ever being transferred to a BOP facility. Anders Br. at
3–4. It is uncontested that Pace has finished serving the sentence imposed in this
case.
3 Appellate Case: 23-1231 Document: 010111010864 Date Filed: 03/06/2024 Page: 4
Pace wishes to challenge the revocation of his supervised release and
requested his counsel file this appeal. See Anders Br. at 4–7. Counsel then filed the
Anders brief before us. Neither Pace nor the government submitted a response brief.
II.
Appellate counsel’s “role as advocate requires that he support his client’s
appeal to the best of his ability.” Anders, 386 U.S. at 744. However, when counsel
for the defendant has found the case to be “wholly frivolous, after a conscientious
examination of it, he should so advise the court and request permission to withdraw.”
Id. Once counsel files an Anders brief, this Court must conduct a “full examination
of all the proceedings, to decide whether the case is wholly frivolous.” Id. If, after
performing an independent review of the record, we agree with counsel, then we may
grant his request to withdraw and dismiss the appeal. Id. In this case, we agree with
counsel.
Pace has no non-frivolous grounds for appeal because the case is moot.
Article III of the United States Constitution extends our jurisdiction only to cases or
controversies. U.S. CONST. art. III, § 2, cl. 1. “[W]hen the injury for which an
appellant seeks judicial relief disappears or is resolved extrajudicially prior to the
appellate court’s decision, the appellant can no longer satisfy the Article III case or
controversy jurisdictional requirement and the appeal is moot.” United States v.
Meyers, 200 F.3d 715, 718 (10th Cir. 2000) (citing Burke v. Barnes, 479 U.S. 361,
363 (1987)). An appeal challenging a sentence is rendered moot when the defendant
fully serves the sentence, “unless he can show that he remains subject to collateral
4 Appellate Case: 23-1231 Document: 010111010864 Date Filed: 03/06/2024 Page: 5
consequences even after completing the sentence.” United States v. Sandoval-
Enrique, 870 F.3d 1207, 1210–11 (10th Cir. 2017). In Meyers we held that “when a
defendant appeals the revocation of his supervised release and resulting
imprisonment and has completed that term of imprisonment, the potential impact of
the revocation order and sentence on possible later sentencing proceedings does not
constitute a sufficient collateral consequence to defeat mootness.” 200 F.3d at 722.
It is undisputed that Pace has completed his sentence. And counsel does not identify,
nor can we surmise, a potential collateral consequence of the revocation of Pace’s
supervised release beyond hypothetical impacts on sentencing proceedings in the
future. Pace’s appeal is thus moot under the binding precedent of this circuit, and we
lack jurisdiction to consider the challenge to the revocation of his supervised release.
III.
For the reasons stated above, we agree with counsel that there is no non-
frivolous basis for appeal. Accordingly, we GRANT counsel’s motion to withdraw
and DISMISS the appeal.
Entered for the Court
Allison H. Eid Circuit Judge