United States v. Wesley Blackburn

461 F.3d 259, 2006 U.S. App. LEXIS 22098, 2006 WL 2506213

• Court: Court of Appeals for the Second Circuit
• Decided: July 26, 2006
• Docket: Docket 05-1875-cr
• Status: Published

Opinions

MESKILL, Circuit Judge.

Defendant-appellant Wesley Blackburn challenges the judgment of the United States District Court for the Western District of New York, Skretny, sentencing him principally to 37 months imprisonment followed by three years supervised release. Blackburn’s sole argument on appeal is that the district court erred in imposing a four-level sentencing enhancement pursuant to United States Sentencing Guidelines (“U.S.S.G.” or “Guidelines”) § 2K2.1(b)(5). Because Blackburn has completed his prison sentence and we are convinced that a favorable decision on appeal would yield no “effectual relief,” United States v. Quattrone, 402 F.3d 304, 308 (2d Cir.2005), we conclude that the case is moot and dismiss it for lack of jurisdiction without reaching the merits of Blackburn’s claim.

BACKGROUND

The facts underlying Blackburn’s conviction and sentence are not in dispute. On March 16, 2003, Blackburn and another man burglarized an apartment in North Tonawanda, New York, and stole three firearms manufactured outside the state of New York. Blackburn and his accomplice later sold the firearms to a third party.

Blackburn, who had a previous felony conviction from New York State, was charged in state court with burglary, criminal sale of a firearm, grand larceny, petit larceny, and criminal possession of a weapon. These state charges were dismissed after the federal prosecution was instituted.

Blackburn waived indictment and pleaded guilty, pursuant to a written plea agreement with the federal government, to a one-count information charging him with being a felon in possession of firearms in violation of 18 U.S.C. § 922(g)(1). In the plea agreement, Blackburn admitted all the facts necessary to establish the felon-in-possession charge (the offense of conviction) as well as the uncharged offenses of the burglary and sale of the stolen firearms.

The United States Probation Department prepared a Pre-Sentence Report (PSR), recommending a sentencing range under the Guidelines of 46 to 57 months imprisonment. The PSR’s calculation included, among other enhancements, a four-level increase over the base offense level pursuant to U.S.S.G. § 2K2.1(b)(5) because the firearms were possessed “in connection with another felony offense” — that other felony offense being the admitted burglary.

Blackburn objected to the application of the § 2K2.1(b)(5) enhancement. He also asked the judge to depart downward with respect to his Criminal History, from Category TV to Category III, on the ground that Category IV overrepresented his criminal history.

The district court found that the § 2K2.1(b)(5) enhancement applied, but imposed a non-Guidelines term of imprisonment of 37 months — 9 months below the indicated Guidelines range of 46 to 57 months. The court further imposed a three-year term of supervised release, which included both standard and special conditions.

Blackburn timely appealed from his sentence. At oral argument the government informed us that Blackburn was scheduled to have been released from federal prison two days previously. Later it was confirmed that Blackburn had, in fact, been released from custody and was serving his three-year term of supervised release. By order of our Court, the parties submitted further briefing as to whether Blackburn’s release from custody mooted his appeal.

DISCUSSION

Article III, Section 2 of the United States Constitution limits the federal judicial power to “cases” and “controversies.” U.S. Const, art. II, § 2. This “case-or-controversy limitation ... underpins both our standing and our mootness jurisprudence.” Friends of the Earth v. Laidlaw Envtl. Servs., 528 U.S. 167, 180, 120 S.Ct. 693,145 L.Ed.2d 610 (2000).

[T]o satisfy Article Ill’s standing requirements, a plaintiff must show (l)[he] has suffered an “injury in fact” that is (a) concrete and particularized and (b) actual or imminent, not conjectural or hypothetical; (2) the injury is fairly traceable to the challenged action of the defendant; and (3) it is likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision.

Id. at 180-81, 120 S.Ct. 693 (citing Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992)). “[I]t is the burden of the party who seeks the exercise of jurisdiction in his favor, clearly to allege facts demonstrating that he is a proper party to invoke judicial resolution of the dispute.” Spencer v. Kemna, 523 U.S. 1, 11, 118 S.Ct. 978, 140 L.Ed.2d 43 (1998) (internal quotation marks omitted).

“In order to satisfy the case-or-controversy requirement, a party must, at all stages of the litigation, have an actual injury which is likely to be redressed by a favorable judicial decision.” United States v. Mercurris, 192 F.3d 290, 293 (2d Cir.1999) (citing Spencer, 523 U.S. at 7, 118 S.Ct. 978). Thus, as a general rule, “if an event occurs during the course of the proceedings or on appeal ‘that makes it impossible for the court to grant any effectual relief whatever to a prevailing party,’ we must dismiss the case.” Quattrone, 402 F.3d at 308 (quoting Church of Scientology v. United States, 506 U.S. 9, 12, 113 S.Ct. 447, 121 L.Ed.2d 313 (1992) (further internal quotation marks and citation omitted)).

Several of our sister circuits have held that a challenge to a sentence by a criminal defendant who has completed his prison term but remains subject to supervised release is not moot because the possibility of the district court’s reducing the term of supervised release on remand gives the defendant-appellant a continuing stake in the outcome. See, e.g., United States v. Larson, 417 F.3d 741, 748 (7th Cir.2005); United States v. Castro-Rocha, 323 F.3d 846, 847-48 n. 1 (10th Cir.2003); United States v. McCoy, 313 F.3d 561, 564 (D.C.Cir.2002) (en banc); United States v. Verdin, 243 F.3d 1174, 1178-79 (9th Cir.2000).² The record before us, however, reveals that the possibility of the district court’s imposing a reduced term of supervised release on remand is so remote and speculative that any decision on the merits of Blackburn’s claim would amount to a “declaration of] principles or rules of law which cannot affect the matter in issue in the case before [us],” Mills v. Green, 159 U.S. 651, 653, 16 S.Ct. 132, 40 L.Ed. 293 (1895), and would thus run afoul of Article Ill’s restriction of our power.

There is every indication in the record that the district court would not reduce Blackburn’s term of supervised release on remand. Much to the contrary, the transcript of sentencing reveals the court’s design to keep as close an eye on Blackburn as possible for as long as possible. Judge Skretny stated that he had been “searching to latch on to something that tells me that maybe a sentence outside of the Guideline range is the appropriate sentence in this case,” but repeatedly expressed his concern about Blackburn’s constant failures to help himself and turn his life around when given previous opportunities to do so. The judge asked, “What makes it different now?”.

Blackburn replied that his prior bad acts occurred while he was young, stupid and drinking. On his behalf, Blackburn’s attorney requested that Blackburn be sentenced to a particular treatment program even though participation in such a program would not yield any “sentencing break.” Asking for a “second chance,” Blackburn’s attorney pledged that Blackburn’s actions would demonstrate his commitment to turn his life around. Most significantly, Blackburn’s pitch for a non-Guidelines sentence expressly included a rigorous period of supervised release:

He doesn’t want a second chance so he can get probation. He doesn’t want a second chance so he can skate on this. He’s not going to skate, because I’m sure the Court is going to — the Court will have to and will impose a significant supervised release period on him in addition to the incarceration. So, you know, actions speak louder than words.

Having made such a pitch, Blackburn could not have been surprised that the district court imposed the maximum term of supervised release — three years.

The sentence Blackburn requested — and that the court imposed — aimed at decreasing prison time and increasing supervision of Blackburn’s actions to see whether he would “make good on [his] promises.” The court, of course, ultimately credited Blackburn’s statements that he was ready to turn his life around and imposed a term of imprisonment below the indicated Guidelines range. Still, Judge Skretny again expressed concern as to Blackburn’s unfavorable track record, described what he wanted to see in Blackburn’s behavior and, accordingly, imposed some special conditions of supervised release — for example, completion of a G.E.D. program. The judge warned, “[i]f you don’t help yourself, which is where you’ve been lacking in the past, ... [i]f you foul up with respect to any of those [special conditions], I’ll remember everything that we talked about if you come back before me on a violation.” In light of the court’s repeated expression of its concern about Blackburn’s commitment to follow through with his promised lifestyle changes and its tailoring of the conditions of supervised release to monitor Blackburn’s progress, we find it impossible to believe that the court would reduce the term of supervised release to accommodate a change in the Guidelines calculation for the term of imprisonment.

That idea is still more farfetched because the court had already taken into account the possibility that the § 2K2.1(b)(5) enhancement may not apply. At sentencing, the district court acknowledged that there is a split among the circuits that have considered the applicability of the enhancement in similar factual circumstances and that this Court has not addressed the issue. While the court did find that the enhancement applied and calculated the Guidelines range accordingly, it imposed a term of imprisonment nine months below the indicated range, explaining that, among other factors, “[t]here have been some close legal issues that I think needed to be addressed, that I give you credit for.”³ (emphasis added). Although the court stopped short of saying that it would impose the same sentence with or without the enhancement, its statement indicates that the uncertain applicability of the enhancement was factored into the court’s sentence. There is, then, even less reason to suppose that the court might reduce the term of supervised release — to which the Guidelines calculations have limited relevance, see 18 U.S.C. § 3583(c) — in light of a correction as to the applicability of the § 2K2.1(b)(5) enhancement.

Yet Blackburn argues that the district court might be willing to reduce his term of supervised release to make up for “lost time” — that is, the excess time (if any) that Blackburn served in prison over what the court would have sentenced him to without the application of the challenged enhancement. Of course, the district court could do this. See United States v. Barresi, 361 F.3d 666, 674-75 (2d Cir.2004). But we must again conclude that it is extremely unlikely that the court would exercise its discretion in this way, as it would be guided by the United States Supreme Court’s cautioning that it is improper to treat terms of imprisonment and supervised release as “interchangeable.” United States v. Johnson, 529 U.S. 53, 58-59, 120 S.Ct. 1114, 146 L.Ed.2d 39 (2000). In rejecting a petitioner’s argument that his term of supervised release commenced on the date he should have been released from prison (but was not, due to error) rather than his actual date of release, the Court observed that “[t]he objectives of supervised release would be unfulfilled if excess prison time were to offset and reduce terms of supervised release. Congress intended supervised release to assist individuals in their transition to community life. Supervised release fulfills rehabilitative ends, distinct from those served by incarceration.” Id. at 59, 120 S.Ct. 1114.

While Johnson clearly leaves the option open, it nevertheless suggests that to reduce Blackburn’s term of supervised release as a means of offsetting excess prison time would disserve the objectives of supervised release.⁴ See id. Therefore, as unlikely as it is, in light of the statements recounted above, that the district court would be otherwise willing to exercise its discretion in this way, Johnson’s exposition of “[the supervised release] statute’s purpose and design” would count as another factor militating against reducing Blackburn’s term of supervised release, making it more unlikely still that the court would choose to do so. Id.

We should note that we by no means wish to add to the burden of district judges to articulate fully and clearly their reasons for imposing particular sentences. See United States v. Bermingham, 855 F.2d 925, 932 (2d Cir.1988). Rather, we intend that our decision today should evidence our attention to sentencing judges’ careful explanations. When a judge has so thoroughly laid out his concerns as to obviate the need for a remand for any clarification, we will not disregard his statements on the record and remand for imposition of the same sentence. “What we know as men and women we must not forget as judges.” United States v. Roberson, 917 F.2d 1158, 1161 (9th Cir.1990) (Aldisert, J., dissenting). Cf. Bermingham, 855 F.2d at 935 (“Though we think it likely that the District Judge would have imposed a nine-month sentence whether offense level 6 or offense level 4 applied, we cannot, in light of the record, reach that conclusion with sufficient confidence to act upon it.”).

CONCLUSION

Under the post-Booker sentencing regime, district courts have a “continuing duty to consider [the Guidelines], along with the other factors listed in [18 U.S.C. § ] 3553(a),” United States v. Crosby, 397 F.3d 103, 111 (2d Cir.2005) (internal quotation marks omitted). The Courts of Appeals likewise have a continuing duty to review the district courts’ application of sentencing enhancements. See United States v. Agudelo, 414 F.3d 345, 347 (2d Cir.2005). The sentencing issue raised here is an important one, over which there is a split of authority among the circuits.

The importance of the issue, however, and the temptation to decide it can have no bearing on our assessment of its justicia-bility. See Friends of the Earth, 528 U.S. at 213, 120 S.Ct. 693 (“Because the requirement of a continuing case or controversy derives from the Constitution, it may not be ignored when inconvenient.”) (Sca-lia, /., dissenting) (citation omitted). Were we to reach the substantive issue today, we would overstep the bounds of the authority granted us by the federal Constitution. See Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 101-02, 118 S.Ct. 1003, 140 L.Ed.2d 210 (1998) (“For a court to pronounce upon the meaning or the constitutionality of a state or federal law when it has no jurisdiction to do so is, by very definition, for a court to act ultra vires.”); Ex parte McCardle, 74 U.S. (7 Wall.) 506, 514, 19 L.Ed. 264 (1868) (“Without jurisdiction the court cannot proceed at all in any cause. Jurisdiction is power to declare the law, and when it ceases to exist, the only function remaining to the court is that of announcing the fact and dismissing the cause.”).⁵

2 . To be sure, "equitable considerations of great weight exist when an individual is incarcerated beyond the proper expiration of his prison term,” United States v. Johnson, 529 U.S. 53, 60, 120 S.Ct. 1114, 146 L.Ed.2d 39 (2000), or has endured unwarranted conditions of confinement, see Levine v. Apker, 455 F.3d 71 (2d Cir.2006). Thus we may assume that in the typical case, as in those just cited in the body text and in the dissent, an appellate court could fairly deem it likely enough that, if the merits issue were decided in favor of the defendant, the district court would use its discretion on remand to modify the length of a term of supervised release. In the typical case, a judge does not say quite as much about supervised release as Judge Skretny did here.

The dissent is quite right to observe, then, that "we ... agree that challenges such as Blackburn’s are not always moot.” It is equally true, however, that challenges such as Blackburn's are not always not moot. As a court empowered to decide concrete cases and not abstract principles, we decide whether the case is justiciable on the record before us. In this case, as we are about to explain, the district court's clear expression of a design to keep as close an eye on Blackburn as possible for as long as possible convinces us that it is so unlikely that the court would actually reduce Blackburn’s term of supervised release that a decision on the merits would amount to an advisory opinion. The district court’s statements thus distinguish this case from others in which the record does not provide such vivid insight into the sentencing court’s concerns. Accordingly, our holding in this case is quite narrow.

3 . The only other legal issue contested was whether Blackburn should have been in Criminal History Category III or IV. The transcript of sentencing reveals that Blackburn’s belonging in the higher category was not at all a close question.

4 . This reading of Johnson, 529 U.S. 53, 120 S.Ct. 1114, 146 L.Ed.2d 39 (2000), is in no way inconsistent with our opinion in United States v. Bairesi, 361 F.3d 666 (2d Cir.2004). In Barresi we corrected the district court’s erroneous statement that "any reduction in Barressi's supervised-release term could be accomplished only by means of a Guidelines departure.” 361 F.3d at 668. We considered only whether "the district court could have reduced Barresi's supervised-release term from three years to as low as two, within the range specified by the Guidelines,” and answered that question in the affirmative. Id. at 675 (emphasis added). We cited Johnson for the proposition that the court would have had no authority to do so had the three-year term been mandated by statute. See id. at 674-75 (citing Johnson, 529 U.S. at 54-56, 120 S.Ct. 1114). We expressed no opinion as to either the advisability or (what is more important in this case) the likelihood, in light of Johnson’s exposition of the divergent objectives of incarceration and supervised release, of a court's exercising its discretion to reduce the appellant's supervised release term solely to compensate for his having served an overlong prison term as if the terms were interchangeable.

5 . Our reasoning is simple. We find it difficult to believe that our opinion could be so profoundly misunderstood. At the risk of muddying what we believe is clear, we will briefly address a few of the dissent's distortions of our position.

First, as a matter of both law and logic, our assessment of the case's justiciability must precede any substantive analysis. That threshold issue turns on one question: Is the possibility that the district court, in the event of a remand on the merits issue, would choose to exercise its discretion to reduce Blackburn's term of supervised release so unlikely that any decision on the merits would amount to an advisory opinion? That is the only question we consider or decide in our opinion. We make no apologies for our "combing the record” to decide this threshold question. On the contrary, we hope and believe that it is our common practice to make decisions based on the records before us and not in abstraction. We wish to make clear that our repeated reference to the record betrays no covert substantive analysis. Our dissenting colleague misses the point in asserting that our attention to the record reveals that we are engaged in harmless error analysis. What we have concerned ourselves with here is not harmlessness, but fruitlessness. Convinced as we are on the record before us that any substantive decision could yield the prevailing party no effectual relief, we cannot and do not proceed further.

Second, we have neither created any "dicta” nor "misconstrue[d] Johnson." We have explicitly and repeatedly acknowledged throughout our opinion that the district court unquestionably would have the power, in the event of a remand, to reduce Blackburn's term of supervised release. Johnson, as we have explained, "clearly leaves this option open.” In other words, Johnson is by no means on all fours with Blackburn.

We have already explained how our decision today is in no way inconsistent with Barresi. At this point we note only that the distinction of the issue considered in Barresi (i.e., whether on remand a district court could reduce a non-mandatory term of supervised release without departing from the Guidelines) from the issue we consider today (i.e., whether the court in this case would do so) belies the dissent's charge that in Barresi "we explicitly rejected the reading of Johnson advanced by the majority here.” In Barresi we had no reason to and did not discuss the portion of Johnson that informs our decision in Blackburn.

Finally, we have not "ignore[d] important distinctions between direct and collateral consequences of a conviction.” We have deliberately refrained from needless analysis of the collateral consequences doctrine because Blackburn has not advanced a colorable argument that any collateral consequence attaches to his having served 37 months in prison, as opposed to some shorter term. (We do not consider the potential consequences for Blackburn should he violate his supervised release, as that, like a future criminal conviction, is a possibility Blackburn is “able — and indeed required by law- — to prevent ... from occurring.” Spencer v. Kemna, 523 U.S. 1, 15, 118 S.Ct. 978, 140 L.Ed.2d 43 (1998) (internal quotation marks omitted).) The doctrine does not apply to the one colorable argument Blackburn has that his case is not moot — that being the possibility that his term of supervised release (a direct consequence of his conviction) would be reduced in the event of a remand.