United States v. Raul Saenz

• Court: Court of Appeals for the Ninth Circuit
• Decided: January 19, 2021
• Docket: 18-56659
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JAN 19 2021 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 18-56659

Plaintiff-Appellee, D.C. Nos. 3:16-cv-01619-JLS 3:97-cr-02106-JLS-1 v.

RAUL ERNEST SAENZ, MEMORANDUM*

Defendant-Appellant.

Appeal from the United States District Court for the Southern District of California Janis L. Sammartino, District Judge, Presiding

Submitted January 14, 2021** Pasadena, California

Before: CALLAHAN and WATFORD, Circuit Judges, and RAKOFF,*** District Judge.

Raul Ernest Saenz appeals from the district court’s order dismissing his 28

U.S.C. § 2255 motion to vacate and correct his sentence. We affirm.

* 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). *** The Honorable Jed S. Rakoff, United States District Judge for the Southern District of New York, sitting by designation. Page 2 of 3

The district court correctly held that Saenz’s § 2255 motion was untimely.

As Saenz acknowledges, we rejected the same arguments he advances here in

United States v. Blackstone, 903 F.3d 1020 (9th Cir. 2018). There, we held that

Johnson v. United States, 576 U.S. 591 (2015), did not recognize a new right

applicable to the mandatory Sentencing Guidelines or to 18 U.S.C. § 924(c) on

collateral review. Blackstone, 903 F.3d at 1026–28. Saenz’s § 2255 motion is

therefore untimely.

We note that Saenz’s challenge to his career-offender status under the

Sentencing Guidelines is not moot simply because he has been released from

custody. It is true, of course, that a defendant ordinarily may not challenge a

sentence that has expired during the course of the proceedings. Lane v. Williams,

455 U.S. 624, 631 (1982). However, while Saenz has been granted release, he has

not completed his sentence: he remains subject to the three years of supervised

release imposed concurrently for each count of conviction. Where, as here, a

“district court has the statutory discretion to modify a defendant’s term of

supervised release following a successful sentencing challenge, the possibility that

the district court may exercise such discretion following this court’s decision is

sufficient to prevent an appeal from becoming moot.” United States v. D.M., 869

F.3d 1133, 1137 (9th Cir. 2017) (quoting United States v. Strong, 489 F.3d 1055,

1060 (9th Cir. 2007)). If Saenz’s challenge to his career-offender status were Page 3 of 3

meritorious, “there is a nontrivial possibility that the district court . . . [would]

reduce his term of supervised release under § 3583(e).” Allen v. Ives, 950 F.3d

1184, 1187 (9th Cir. 2020); see also 18 U.S.C. § 3583(e)(2) (“The court may . . .

modify, reduce, or enlarge the conditions of supervised release, at any time prior to

the expiration or termination of the term of supervised release.”).

We also note, as to the challenge to his § 924(c) convictions, that Saenz filed

an “amended/renewed” § 2255 motion in the district court within one year of the

Supreme Court’s decision in United States v. Davis, 139 S. Ct. 2319 (2019), which

invalidated the residual clause of § 924(c), under which Saenz was found to have

been convicted of a crime of violence. That motion remains pending and may

provide a vehicle for Saenz to pursue his claims.

Nevertheless, because we conclude that Saenz’s motion is untimely, we do

not reach his arguments as to the merits of his motion.

AFFIRMED.