FILED
United States Court of Appeals
Tenth Circuit
April 25, 2011
PUBLISH Elisabeth A. Shumaker
Clerk of Court
UNITED STATES COURT OF APPEALS
TENTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 10-2063
JOSE SANTOS VAQUERA-JUANES,
Defendant - Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
(D.C. NO. 2:09-CR-01049-JB-1)
Thomas B. Jameson, Assistant Federal Public Defender, Albuquerque, New
Mexico, for Defendant-Appellant.
David N. Williams, Assistant United States Attorney (Kenneth J. Gonzales,
United States Attorney, with him on the brief), Albuquerque, New Mexico, for
Plaintiff-Appellee.
Before BRISCOE, Chief Judge, MURPHY, and MATHESON, Circuit Judges.
MURPHY, Circuit Judge.
I. Introduction
Appellant, Jose Santos Vaquera-Juanes, was charged in a single-count
indictment with knowingly attempting to reenter the United States after having
been previously deported. Vaquera-Juanes pleaded guilty and was sentenced to
forty-nine months’ imprisonment and two years’ supervised release. Although he
did not raise the issue during sentencing, Vaquera-Juanes now argues the district
court erred by imposing a condition of supervised release without first making
required findings. See United States v. Souser, 405 F.3d 1162, 1165 (10th Cir.
2005) (holding a district court may not impose an occupational restriction without
first finding that the criteria set forth in USSG § 5F1.5 are met).
Exercising jurisdiction pursuant to 28 U.S.C. § 1291 and 18 U.S.C.
§ 3742(a), this court dismisses Vaquera-Juanes’s appeal on prudential ripeness
grounds.
II. Background
In April 2009, Vaquera-Juanes was charged in a one-count indictment with
attempted illegal reentry by a previously removed alien. He pleaded guilty to
violating 8 U.S.C. § 1326 and a presentence investigation report (“PSR”) was
prepared prior to sentencing. The PSR revealed that Vaquera-Juanes’s prior
criminal conduct included several drunk driving convictions and two federal drug
convictions, one committed when Vaquera-Juanes was seventy-one years old and
the other committed when he was seventy-four years old. Accordingly, the PSR
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calculated Vaquera-Juanes’s criminal history at Category V based on eleven
criminal history points. The Category V criminal history, coupled with a total
offense level of twenty-one, resulted in an advisory guidelines range of seventy to
eighty-seven months’ imprisonment.
Vaquera-Juanes filed a sentencing memorandum requesting a substantial
downward variance from the advisory guidelines range. In support, Vaquera-
Juanes cited his advanced age and the fact that he had lived in the United States,
albeit illegally, for most of his life. The Government opposed the downward
variance, asking the district court to sentence Vaquera-Juanes within the advisory
guidelines range. The district court concluded a downward variance was
appropriate and sentenced Vaquera-Juanes to forty-nine months’ imprisonment to
be followed by a two-year term of supervised release.
One of the standard conditions of supervision, and the only one relevant to
the issue Vaquera-Juanes raises on appeal, requires Vaquera-Juanes to “notify
third parties of risks that may be occasioned by [his] criminal record or personal
history.” A similar supervised release condition was held by this court to be an
occupational restriction that may not be imposed unless the sentencing court first
finds that it comports with § 5F1.5 of the Sentencing Guidelines. Souser, 405
F.3d at 1165-66. Although Vaquera-Juanes now argues the district court imposed
this condition without making the required findings, he did not object on this
basis during sentencing.
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III. Discussion
Because Vaquera-Juanes did not raise the alleged error with the district
court during the sentencing hearing, he concedes the issue is reviewed only for
plain error. United States v. Mike, 632 F.3d 686, 691 (10th Cir. 2011). The
Government, however, argues this court does not have jurisdiction to reach the
merits of Vaquera-Juanes’s appeal because the issue he raises is not ripe. See
New Mexicans for Bill Richardson v. Gonzales, 64 F.3d 1495, 1498-99 (10th Cir.
1995) (“The question of whether a claim is ripe for review bears on a court’s
subject matter jurisdiction under the case or controversy clause of Article III of
the United States Constitution.”). Ripeness is a justiciability doctrine “drawn
both from Article III limitations on judicial power and from prudential reasons for
refusing to exercise jurisdiction.” Reno v. Catholic Soc. Servs., Inc., 509 U.S. 43,
57 n.18 (1983); see also Roe No. 2 v. Ogden, 253 F.3d 1225, 1231 (10th Cir.
2001) (acknowledging the ripeness doctrine has both constitutional and prudential
components).
The Government’s first argument implicates constitutional ripeness. It
makes a general and sweeping assertion that challenges to conditions of
supervised release brought while a defendant, like Vaquera-Juanes, is still serving
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an antecedent period of imprisonment are never ripe because the conditions may
never be enforced. 1 This argument is easily rejected.
Conditions of supervised release form a part of the criminal judgment and
thus, in the Article III sense, a challenge to them involves a genuine case or
controversy because the judgment is a final court order binding on an incarcerated
defendant at the time of his appeal. See Mike, 632 F.3d at 692 (“[S]upervised
release terms are directly appealable, despite the fact that they are subject to later
modification, because they are part of the sentencing court’s final orders.”
(quotation omitted)). The specific issue Vaquera-Juanes raises on appeal involves
a genuine case or controversy because the sentence imposed by the district court
is final and Vaquera-Juanes’s challenge is concrete: the challenged condition is
part of a final judgment currently binding on Vaquera-Juanes and he alleges the
court committed a procedural error by imposing a condition of supervised release
without making required findings. Further, this court has previously accepted the
Government’s position, directly contrary to the one it now makes, that a
defendant’s challenge to a supervised release condition must be brought on direct
appeal. United States v. Wayne, 591 F.3d 1326, 1334, 1335 n.8 (10th Cir. 2010)
(refusing to consider defendant’s argument that the district court abused its
1
The Government, inter alia, argues “Vaquera[-Juanes] could die in
prison,” presumably because he is already seventy-seven years old. The same,
however, could be said for all criminal defendants.
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discretion in imposing supervised release conditions because the issue was not
raised on direct appeal).
Although this appeal satisfies the Article III component of the ripeness
inquiry, we are nevertheless persuaded that, for prudential reasons, jurisdiction
should not be exercised and the appeal should be dismissed. Questions of
prudential ripeness typically arise only in civil cases. This court, however, has
previously addressed the issue in criminal cases involving conditions of
supervised release. Id. at 1329 n.1; United States v. White, 244 F.3d 1199, 1202-
04 (10th Cir. 2001). The Government relies on those cases for its prudential
ripeness argument.
In United States v. White, the appellant served his custodial sentence and
then brought a challenge to three conditions of supervised release, arguing they
infringed his constitutional rights. 244 F.3d at 1201. The Government argued for
dismissal on ripeness grounds because none of the conditions had yet been
enforced against the appellant and the challenges were therefore “hypothetical
and speculative.” Id. at 1202. This court addressed the prudential ripeness issue
by reference to the framework set out by the Supreme Court in Abbott
Laboratories v. Gardner, 387 U.S. 136 (1967), examining both the fitness of the
issues raised by the appellant for judicial review and the hardship to the parties
from withholding that review. Id. at 1202-05. We concluded the appellant’s
claims were ripe for judicial review because, inter alia, the issues presented on
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appeal were easily resolved on purely legal grounds and prompt review of the
appellant’s claims would promote judicial efficiency by eliminating the
possibility of multiple sentencing appeals. Id. at 1204. Further, the appellant was
able to show hardship because he successfully demonstrated that a violation of the
challenged condition would likely result in his immediate reincarceration. Id. at
1204-05.
United States v. Wayne involved an appellant who completed her term of
incarceration and then was alleged to have violated one of the conditions of
supervised release. 591 F.3d at 1329. The district court ordered the appellant to
comply with the condition and she appealed that order. Id. This court sua sponte
acknowledged a ripeness issue, noting the appellant was seeking relief from a
court order but the district court had “not found that [appellant] violated the
special conditions and ha[d] not revoked her supervised release.” Id. at 1329 n.1.
Employing the approach previously taken in White, this court concluded the
appellant would suffer a hardship if her claims were not resolved because she
faced a “meaningful possibility of re-incarceration.” Id. Further, the issues were
fit for judicial review because they were easily resolved on the merits and it
furthered the interests of judicial efficiency to address those issues in the pending
appeal rather than remand the matter to the district court and wait for the
revocation of the appellant’s term of supervised release. Id.
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Our analysis of prudential ripeness follows White’s approach of examining
the fitness of the issue raised on appeal for judicial review and the potential
hardship to the defendant from withholding review. 244 F.3d at 1202. At first
blush, it appears Vaquera-Juanes’s appeal is fit for judicial review. It is
undeniable that Vaquera-Juanes’s challenge could be easily resolved on the merits
based on the record currently before this court. Resolving Vaquera-Juanes’s
appeal at this time, however, would not be an efficient use of judicial resources
because any relief he obtains would be illusory. Vaquera-Juanes is a removable
alien. The district court recommended that Immigration and Customs
Enforcement (“ICE”) begin removal proceedings during his term of incarceration.
The record thus indicates Vaquera-Juanes will be removed once he completes his
term of custodial confinement and fails to reveal any realistic possibility he will
be released from immigration detention while he awaits physical removal.
Accordingly, the issue Vaquera-Juanes raises in this appeal is not fit for judicial
review at this time because the occupational restriction imposed by the district
court currently has no practical effect on him, and will have no practical effect on
him during the two-year period of supervised release. Regardless whether this
court affirms the district court’s judgment or remands the matter for further
proceedings, our review of the merits would be a waste of judicial resources. The
best possible outcome for Vaquera-Juanes—a remand for resentencing and,
ultimately, the elimination of the occupational restriction—will result in further
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proceedings in district court that would be essentially meaningless, compounding
the inefficient use of judicial resources. Thus, a decision in his favor would
actively undermine rather than promote judicial efficiency.
For many of the same reasons, Vaquera-Juanes has also failed to show he
will suffer any hardship if we dismiss his appeal on prudential grounds. Vaquera-
Juanes’s situation is materially different from those presented in White and
Wayne. In both Wayne and White, the condition imposed by the district court was
fixed and determinate at the time it was imposed. As soon as appellant Wayne
was released from incarceration she was required to “participate in a mental
health evaluation as directed by her probation officers.” Wayne, 591 F.3d at
1329. Similarly, appellant White was required to submit to a search of his home,
presumably to determine if he was in possession of several restricted items,
including “sexually explicit material” and “a computer with Internet access.”
White, 244 F.3d at 1201. Neither Wayne nor White was a removable alien and
both had already been released after serving their terms of imprisonment.
Vaquera-Juanes’s situation is more attenuated. Most critically, the
challenged condition will have no impact on him unless he is released into the
United States after his term of incarceration is completed. During that period of
freedom, Vaquera-Juanes would have to seek and obtain employment before the
challenged condition impacted him. The possibility that Vaquera-Juanes will be
released is remote. The district court has ordered removal proceedings to begin
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during the term of incarceration and Vaquera-Juanes presents no convincing
argument he will not be taken into ICE custody upon his release from BOP
custody and immediately deported. Further, he fails to convince this court he will
likely obtain the Attorney General’s permission to remain in this country, or
return with permission, while the two-year term of supervised release is in effect.
See 8 U.S.C. § 1182(a)(9) (restricting the admissibility of aliens who have
previously been removed). Vaquera-Juanes has likewise failed to give this court
any reason to believe he would be able to obtain lawful employment in this
country even if released from BOP custody. Cf. Lane v. Williams, 455 U.S. 624,
633 n.13 (1982) (concluding a challenge to a mandatory parole provision would
affect respondents only if they violated state law and respondents were
“able—and indeed required by law—to prevent such a possibility from
occurring”).
Because Vaquera-Juanes has shown no practical possibility he will ever
legally be in a position to violate the terms of the condition he challenges, he has
failed to show any likelihood his term of supervised release will be revoked
because of a violation of the challenged condition. Accordingly, even if the
disputed condition remains part of the criminal judgment, 2 there is no reasonable
2
This court expresses no opinion on the propriety of imposing the disputed
standard condition of supervised release on a removable alien.
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possibility it will result in Vaquera-Juanes’s reincarceration and he has thus failed
to show he will suffer any hardship if we dismiss his appeal.
IV. Conclusion
Having reviewed the record and considered the parties’ arguments under
the applicable standards, we dismiss Vaquera-Juanes’s appeal on prudential
ripeness grounds.
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