NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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No. 10-1475
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UNITED STATES OF AMERICA,
Appellee,
v.
MELVIN R. PETERSEN,
Appellant.
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On Appeal from the District Court
for theVirgin Islands
(D.C. Civ. No. 96-261)
District Judge: Curtis V. Goméz
Submitted Under Third Circuit L.A.R. 34.1(a)
on December 14, 2010
Before: MCKEE, Chief Judge, FUENTES, SMITH, Circuit Judges.
(Opinion Filed: December 14, 2010)
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OPINION OF THE COURT
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FUENTES, Circuit Judge:
1
Melvin Petersen (“Petersen”) appeals from the modification pursuant to 18 U.S.C.
§ 3852(c)(2) of his sentence for crack cocaine possession. For the reasons given below,
we dismiss this case as moot.1
I.
Because we write primarily for the parties, we set forth only the facts and history
that are relevant to our conclusion. In 1998, Petersen was convicted in federal district
court of a charge of possession of crack cocaine with intent to distribute under 21 U.S.C.
§§ 841(a)(1) and 860. He was sentenced to a mandatory minimum of 240 months’
imprisonment and 10 years of supervised release. The government now concedes that
Petersen’s sentence was based on a miscalculation of the appropriate sentence under the
federal sentencing guidelines; however, Petersen never raised the error in his sentencing
at any point until the present appeal. In April 2000, we affirmed Petersen’s conviction on
direct appeal.
In 2008, Petersen requested a retroactive sentence reduction pursuant to the United
States Sentencing Commission’s 2007 amendment in 18 U.S.C. § 3852(c)(2) of the
federal sentencing guidelines respecting crack cocaine offenses. See, e.g., United States
v. Fleming, 617 F.3d 252, 256 (3d Cir. 2010). After some delay, on February 4, 2010, the
district court modified Petersen’s sentence to 151 months’ imprisonment and 6 years of
supervised release. Petersen completed his sentence and was released on February 12,
2010, whereupon he filed this appeal.
1
The District Court had jurisdiction pursuant to 18 U.S.C. § 3231. We have jurisdiction
to hear this appeal pursuant to 28 U.S.C. § 1291.
2
Petersen, who appears pro se, argues his original sentence was “illegal” because of
the error in his sentencing calculation. Therefore, he contends, the District Court lacked
the authority simply to resentence him, but instead was required to “go . . . back to the
judgment.” We construe this as a request for a full resentencing proceeding. If the
modification of Petersen’s sentence was, indeed, a resentencing proceeding, then
Petersen’s appeal would be timely. Federal Rules of Appellate Procedure 4(b)(1)(A)(i).
However, the United States argues that, as Petersen has now been released from
prison, his appeal of his sentence is moot. This is correct. Article III requires that an
actual case or controversy exist at the time of appellate review. United States v.
Kissinger, 309 F.3d 179, 180 (3d Cir. 2002). A live controversy is presumed to exist,
even after release, in the case of a defendant’s challenge to a conviction, the effects of
which may well be felt in the future. Sibron v. New York, 392 U.S. 40, 55 (1968).
However, “[a] defendant who is serving a term of supervised release and challenges only
his completed sentence of imprisonment must show collateral consequences” of that
sentence of imprisonment to demonstrate that there is still a live controversy. United
States v. Jackson, 523 F.3d 234, 241 (3d Cir. 2008). When “the appellant is attacking a
sentence that has already been served, collateral consequences will not be presumed, but
must be proven.” Burkey v. Marberry, 556 F.3d 142, 148 (3d Cir. 2009). Petersen has
not even suggested a collateral consequence of his incarceration, much less proven one.
And we note that, although Petersen may still be within his term of supervised release, he
does not address his supervised release in his briefs at all, only his incarceration.
3
Even if this case were not moot, this appeal would be untimely. When granting a
sentence reduction pursuant to § 3852(c)(2), a district court does not engage in “a
sentencing or resentencing proceeding,” but instead a “modification of a term of
imprisonment.” Dillon v. United States, 130 S. Ct. 2683, 2690 (2010). In Dillon, the
prisoner contended that “any mistakes committed at the initial sentencing are imposed
anew if they are not corrected.” Therefore, during his own sentence-reduction hearing
under § 3852(c)(2), Dillon argued, the district court should also have corrected alleged
errors in the calculation of his “original” sentence. The Supreme Court rejected this
argument, holding that such errors were “outside the scope of the proceeding authorized
by [§ 3582],” and thus could not have been addressed by the district court. 130 S.Ct. at
2694.
The situation here is effectively identical. In its February 2010 order, the District
Court did not “impose anew” the errors in the original calculation of Petersen’s sentence,
but merely modified that sentence pursuant to the limited authority granted it by §
3852(c)(2). Thus, Petersen is effectively seeking review of his 1998 sentence, not of the
District Court’s order some twelve years later. Such a request is clearly untimely under
Fed. R. App. P. 4(b)(1)(A)(i).
II.
For the foregoing reasons, we will dismiss this appeal as moot.
4