PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
No. 07-4685
CALVIN HARDY, a/k/a Frankie Hall,
a/k/a Stacy Long,
Defendant-Appellant.
Appeal from the United States District Court
for the Eastern District of Virginia, at Richmond.
Robert E. Payne, Senior District Judge.
(3:98-cr-00307-REP-5)
Argued: September 22, 2008
Decided: November 6, 2008
Before WILLIAMS, Chief Judge, and TRAXLER
and GREGORY, Circuit Judges.
Dismissed by published opinion. Chief Judge Williams wrote
the opinion, in which Judge Traxler and Judge Gregory
joined.
COUNSEL
ARGUED: Paul Geoffrey Gill, Assistant Federal Public
Defender, OFFICE OF THE FEDERAL PUBLIC
2 UNITED STATES v. HARDY
DEFENDER, Richmond, Virginia, for Appellant. Richard
Daniel Cooke, OFFICE OF THE UNITED STATES ATTOR-
NEY, Richmond, Virginia, for Appellee. ON BRIEF:
Michael S. Nachmanoff, Federal Public Defender, Alexan-
dria, Virginia, for Appellant. Chuck Rosenberg, United States
Attorney, Alexandria, Virginia, Sara E. Chase, Assistant
United States Attorney, OFFICE OF THE UNITED STATES
ATTORNEY, Richmond, Virginia, for Appellee.
OPINION
WILLIAMS, Chief Judge:
Calvin Hardy appeals the district court’s order revoking his
supervised release and sentencing him to fourteen months
imprisonment, contending that the district court lacked juris-
diction under 18 U.S.C.A. § 3583(i) (West 2000) because his
term of supervised release expired prior to his revocation
hearing. Because Hardy has been released from prison during
the pendency of this appeal and is no longer on supervised
release, however, we conclude that his appeal is moot and
must be dismissed.
I.
On September 23, 1998, a grand jury in the Eastern District
of Virginia returned an indictment charging Calvin Hardy
with conspiracy to commit bank and Social Security fraud
through the theft and passage of stolen checks, in violation of
18 U.S.C.A. § 371 (West 2000), as well as several counts of
uttering forged and counterfeit securities and one count of
fraudulent use of a social security number. Hardy pleaded
guilty to the conspiracy charge on June 4, 1999. Thereafter,
Hardy was sentenced to six months imprisonment with credit
for four-and-a-half months of time served and the remaining
one-and-a-half months to be served in home detention with
UNITED STATES v. HARDY 3
electronic monitoring followed by three years of supervised
release. The district court also required Hardy to provide resti-
tution of $16,169.
On January 5, 2001, Hardy was charged in a Petition on
Supervised Release with violating four conditions of his
supervised release. At a hearing on May 5, 2003, the district
court granted the Government’s motion to dismiss two of the
alleged violations, and Hardy pleaded guilty to the other two
violations—missing two appointments with his probation
officer and failing to report a change in residence. For these
violations, Hardy received a ten-month prison term, followed
by three years of supervised release.
During this second period of supervised release, on Sep-
tember 27, 2004, the Government filed another Petition on
Supervised Release. This petition alleged that Hardy had vio-
lated five conditions of his supervised release. Hardy’s super-
vised release term expired on February 18, 2007, but Hardy
was not arrested on this petition until June 13, 2007.
At a June 21, 2007 hearing, Hardy pleaded guilty to all five
violations. The district court again revoked his supervised
release, sentencing him to the statutory maximum of fourteen
months imprisonment, with no supervised release to follow.
Little to no information surfaced regarding the reason for the
nearly three year delay between the Government’s filing the
petition in 2004 and Hardy’s arrest and sentencing in 2007.
The Government’s attorney noted that Hardy had missed a
home visit by his probation officer and subsequently stopped
returning his probation officer’s calls, and it agreed with the
district court’s statement that Hardy essentially "had no super-
vised release." (J.A. at 48.) Hardy’s attorney agreed that the
missed visit was Hardy’s last contact with his probation offi-
cer and stated that the probation officer had indicated that a
violation petition would likely be filed, but that he (Hardy’s
attorney) "d[id not] know what happened after that." (J.A. at
49.) To explain Hardy’s absence, his attorney suggested that
4 UNITED STATES v. HARDY
Hardy, who learned he was HIV-positive while imprisoned,
simply "had other things on his mind since then." (J.A. at 49.)
Hardy filed a timely appeal in this court, contending that,
because the Government’s three-year delay in arresting him
led to the revocation hearing occurring after his supervised
release expired, the district court lacked jurisdiction to revoke
his supervised release. See 18 U.S.C.A. § 3583(i) (noting that
a district court’s power to "revoke a term of supervised
release . . . extends beyond the expiration of the term of
supervised release for any period reasonably necessary for the
adjudication of matters arising before its expiration if, before
its expiration, a warrant or summons has been issued").
During the pendency of Hardy’s appeal, on June 17, 2008,
Hardy was released from federal custody, having served the
prison sentence he now challenges.1 See Federal Bureau of
Prisons Inmate Locator http://www.bop.gov/iloc2/
LocateInmate.jsp (last visited October 2, 2008) (searched by
Register Number 43194-083). The district court’s sentence
included no additional period of supervised release, so
Hardy’s sentence for violating his supervised release is now
complete. Based upon this factual development, the Govern-
ment moved to dismiss Hardy’s appeal as moot prior to oral
argument.
II.
The Government contends that Hardy’s release moots his
appeal. Because "[t]he doctrine of mootness constitutes a part
of the constitutional limits of federal court jurisdiction,"
Brooks v. Vassar, 462 F.3d 341, 348 (4th Cir. 2006), we
1
As noted, Hardy was sentenced to fourteen months imprisonment on
June 21, 2007, yet released less than one year later, on June 17, 2008. The
Government informs us that Hardy’s release date is the result of Hardy
receiving credit for time served prior to the June 21 revocation hearing and
for good-time credit, pursuant to 18 U.S.C.A. § 3624(b) (West 2000).
UNITED STATES v. HARDY 5
address it first, and in this case, resolution of that question is
determinative. Stated in its simplest form, "a case is moot
when the issues presented are no longer ‘live’ or the parties
lack a legally cognizable interest in the outcome." Powell v.
McCormack, 395 U.S. 486, 496 (1969). "The inability of the
federal judiciary to review moot cases derives from the
requirement of Art. III of the Constitution under which the
exercise of judicial power depends upon the existence of a
case or controversy." DeFunis v. Odegaard, 416 U.S. 312,
316 (1974) (internal quotation marks omitted). And, because
"[t]his case-or-controversy requirement subsists through all
stages of federal judicial proceedings, trial and appellate,"
Lewis v. Continental Bank Corp., 494 U.S. 472, 477 (1990)
(emphasis added), "[l]itigation may become moot during the
pendency of an appeal," Incumaa v. Ozmint, 507 F.3d 281,
286 (4th Cir. 2007); see also Arizonans for Official English
v. Arizona, 520 U.S. 43, 68 n.22 (1997) ("The requisite per-
sonal interest that must exist at the commencement of the liti-
gation . . . must continue throughout its existence." (internal
quotation marks omitted)).
Clearly, if Hardy were still serving his fourteen-month sen-
tence, no mootness concerns would exist. See Spencer v.
Kemna, 523 U.S. 1, 7 (1998) ("An incarcerated convict’s (or
a parolee’s) challenge to the validity of his conviction always
satisfies the case-or-controversy requirement . . . ."). But,
"[o]nce the convict’s sentence has expired . . . some concrete
and continuing injury other than the now-ended incarceration
or parole—some ‘collateral consequence’ of the convic-
tion—must exist if the suit is to be maintained." Id. The
Supreme Court has found such "collateral consequences" for
wrongful convictions, see Sibron v. New York, 392 U.S. 40,
55-56 (1968), but in Spencer, the Supreme Court declined to
extend this doctrine to parole revocation challenges, Spencer,
523 U.S. at 12-16. The Spencer Court declined to "presume
that collateral consequences . . . resulted from petitioner’s
parole revocation," id. at 14, and then concluded that none of
6 UNITED STATES v. HARDY
the claimed "collateral consequences" were sufficiently spe-
cific or concrete,2 id. at 14-16.
Although Congress "eliminated most forms of parole in
favor of supervised release" in the Sentencing Reform Act of
1984, Johnson v. United States, 529 U.S. 694, 696-97 (2000),
courts considering challenges to revocations of supervised
release have universally concluded that such challenges also
become moot when the term of imprisonment for that revoca-
tion ends. See United States v. Duclos, 382 F.3d 62 (1st Cir.
2004); United States v. Kissinger, 309 F.3d 179 (3d Cir.
2002); United States v. Meyers, 200 F.3d 715 (10th Cir.
2000); United States v. Probber, 170 F.3d 345 (2d Cir. 1999).
We agree with our sister circuits that Spencer’s holding logi-
cally extends to revocations of supervised release. Accord-
ingly, "[i]n the absence of a presumption of collateral
consequences, [Hardy] bears the burden of demonstrating col-
lateral consequences sufficient to meet Article III’s case-or-
controversy requirement." Probber, 170 F.3d at 348. See also
United States v. Clark, 193 F.3d 845, 847 (5th Cir. 1999)
("The petitioner has the burden to establish [some concrete
and continuing] injury, and if he fails to satisfy his burden we
must dismiss for lack of jurisdiction").
Perhaps recognizing the litany of "collateral consequences"
already rejected by courts, Hardy has declined to identify any
potential collateral consequences in this case. See e.g., Prob-
ber, 170 F.3d at 349 (finding insufficient that probation revo-
cation might adversely affect reputation, be used as character
and/or impeachment evidence in future criminal or civil pro-
ceedings, be used in support of an upward departure under the
2
Specifically, the petitioner in Spencer v. Kemna, 523 U.S. 1, 14-15
(1998), alleged four collateral consequences arising from the revocation of
his parole: that the revocation could be used (1) to his detriment in future
parole proceedings; (2) to increase his sentence in future sentencing pro-
ceedings; (3) to impeach his credibility at a future criminal or civil trial;
and (4) to increase his chances of conviction if the events of the revocation
were intrinsic to a new offense.
UNITED STATES v. HARDY 7
United States Sentencing Guidelines, or make future errone-
ous convictions more likely); Meyers, 200 F.3d at 719-20
(finding insufficient the possibility that violation of super-
vised release might increase criminal history score under the
Sentencing Guidelines).
Instead, Hardy musters only a single argument to resist the
conclusion that his appeal is moot. Hardy contends that his
situation is distinct from the typical individual contesting the
revocation of supervised release because the district court,
according to Hardy, lacked jurisdiction in the first instance to
revoke his supervised release. Hardy further notes that, of the
courts who have found challenges to the revocation of super-
vised release moot upon the prisoner’s release, none have
addressed challenges to the district court’s underlying juris-
diction under § 3583(i).3
Hardy is correct that "there is no unyielding jurisdictional
hierarchy" with respect to the order in which a court must
address jurisdictional questions, Ruhrgas AG v. Marathon Oil
Co., 526 U.S. 574, 578 (1999), such that "a federal court has
leeway to choose among threshold grounds for denying audi-
ence to a case on the merits," Sinochem Int’l Co. Ltd. v.
Malaysia Int’l Shipping Corp., 127 S. Ct. 1184, 1191 (2007)
(internal quotation marks omitted). But that rule is of no
moment in this case because "mootness, however it may have
come about, simply deprives us of our power to act; there is
nothing for us to remedy, even if we were disposed to do so."
Spencer, 523 U.S. at 18. Hardy’s release from prison has left
us without a "case or controversy" to decide, and "[w]e are
not in the business of pronouncing that past actions which
3
In United States v. Meyers, 200 F.3d 715, 718 (10th Cir. 2000), the
defendant also contended that the Government had "waived its right to
revoke Meyers’ release because it unreasonably delayed seeking revoca-
tion after the alleged violation." The Tenth Circuit, without specifically
stating if Meyers was raising a jurisdictional argument, nonetheless con-
cluded that Meyers’ appeal was moot.
8 UNITED STATES v. HARDY
have no demonstrable continuing effect were right or wrong."
Id.; see also Calderon v. Moore, 518 U.S. 149 (1996) (per
curiam) ("[F]ederal courts may not give opinions upon moot
questions or abstract propositions." (internal quotation marks
omitted)).
Put simply, even assuming the district court lacked jurisdic-
tion to revoke Hardy’s supervised release, given Hardy’s
release from prison, there is no wrong to remedy and "an
appeal should . . . be dismissed . . . when, by virtue of an
intervening event, a court of appeals cannot grant ‘any effec-
tual relief whatever’ in favor of the appellant.’" Calderon, 518
U.S. at 150 (quoting Mills v. Green, 159 U.S. 651, 653
(1895)). Because Hardy has failed to identify any collateral
consequences stemming from the revocation of his supervised
release, his "requisite personal interest" in this litigation has
evaporated. Arizonans for Official English, 520 U.S. at 68
n.22.
III.
Accordingly, for the foregoing reasons, the Government’s
motion to dismiss Hardy’s appeal as moot is granted.
DISMISSED