NOT FOR PUBLICATION FILED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.