United States v. Mejia

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

UNITED STATES OF AMERICA,
Plaintiff,

v. Case No. 1:10-cr-00256-RCL-3

WILFREDO MEJIA,

Defendant.

MEMORANDUM OPINION

In December 2009, MS-13 gangster Wilfredo Mejia helped several associates rob a D.C.
bordello. Proffer at 9-10, ECF No. 217. Police disrupted the robbery, but Mejia fled the scene.
Id. at 10. He was captured a few months later. Jd. Federal prosecutors then charged him with
twenty-three offenses: five counts of assault with a dangerous weapon in aid of racketeering,
kidnapping while armed, and armed robbery; four counts of kidnapping while armed in aid of
racketeering; and single counts of RICO conspiracy, kidnapping in aid of racketeering, first-degree
burglary while armed, and possession of a firearm during and in relation to a crime of violence.
Third Super. Ind., ECF No. 101. In exchange for the government dropping twenty-one of those
counts, Mejia admitted his guilt to all and pleaded guilty to two: RICO conspiracy and the firearms
offense. Plea Agreement at 1, ECF No. 217. The Court sentenced Mejia to 141 months’
imprisonment for those convictions, to be followed by 36 months of supervised release. Judgment,
ECF No. 254. While imprisoned, Mejia moved to vacate his firearms conviction under 28 U.S.C.
§ 2255 and the Supreme Court’s decision in Johnson v. United States. 576 U.S. 591 (2015). Mot.,
ECF No. 628. But as the parties were briefing that challenge, Mejia, a native of El Salvador,

completed his prison term and was deported. Joint Dec. at 1-2, ECF No. 677.
Mejia is thus no longer in federal custody. Jd. He isn’t even in the country anymore. /d.
Given his RICO conviction and his admission to committing his score of other felonies—facts
Mejia left unchallenged in his § 2255 motion—he’s permanently barred from ever re-entering the
United States. Mem. Op. at 9-10, ECF No. 678; see infra 15-16. And though Mejia is nominally
on “supervised release,” probation officers recently explained that they don’t monitor Mejia’s
activities. Prob. Mem. at 1-2, ECF No. 685. They don’t know whether he’s complying with release
conditions like holding a job, abstaining from narcotics, or avoiding firearms. Jd. They don’t even
know where he is. /d. So Mejia hasn’t shown “any restraint on [his] liberty” or any other “litigable
interest” at stake in this litigation. Mem. Op. at 7-8, ECF No. 678.

The Court accordingly declined to settle the abstract question whether Mejia’s firearms
conviction is valid. /d. at 10. Instead, relying on basic principles of Article IIJ jurisdiction, it held
the § 2255 motion moot. /d. But Mejia’s lawyer insists that the motion is not moot, and he wants
the D.C. Circuit to reverse and remand for this Court to consider the Johnson challenge. COA Mot.
at 14, ECF No. 683. Even though a favorable ruling on that issue would have no practical effect
on Mejia’s life, it’s apparently quite important to Mejia that the validity of his firearms conviction
be adjudicated. Why? Counsel’s theory seems to be this: Mejia’s nominal “supervised release”
period runs until June 5, 2023. Jd. at 2. And if Mejia were to illegally immigrate back into the
United States (re-entry bar be damned) and if Mejia were caught, he might be prosecuted for both
illegal re-entry and for failure to obey his supervised release conditions. Jd. at 3. That, in counsel’s
view, saves the § 2255 motion from mootness. /d. But the claim that this speculative chain of
future lawbreaking supports Article III jurisdiction is wrong. In fact, it’s so wrong that it’s not

even reasonably debatable. So the Court will DENY Mejia’s requested certificate of appealability.
I. BACKGROUND

After his arrest and indictment for the 2009 bordello shakedown, Mejia and federal
prosecutors worked toward a plea agreement. They reached one, and memorialized its terms, on
July 20, 2012. Plea Agreement at 1, ECF No. 216. To secure the government’s recommendation
of a 141-month sentence, Mejia agreed to enter pleas of guilty on Counts One (RICO conspiracy)
and Twenty-Three (the firearms offense), and to “admit his guilt in connection with the possession
and brandishing of a firearm during and in connection with the crimes charged in Counts Two
through Twenty-Two.” Jd. at 1-2. Mejia acknowledged that he and his lawyer had reviewed and
assented to those terms and that he had signed the agreement “voluntarily and of [his] own free
will.” Jd. at 6. He also agreed with and signed the government’s description of his crimes in the
accompanying factual proffer. Proffer at 12, ECF 217.

Mejia formally entered his guilty plea before the Court, Judge Rosemary M. Collyer
presiding, on the same day. Min. Entry 7/20/2012; Appendix at 7-8, ECF No. 678. At the hearing,
Judge Collyer took further steps to confirm that Mejia agreed with the plea and proffer. She had
Mejia verify that his signature appeared on both, which he did, and she summarized their contents
for him—“the burglary and robbery at the Taylor Street house of prostitution[].” Jd. at 3-6. She
queried whether “those things are true and could be proved,” to which Mejia responded, “yes.”
Id. at 6-7. Satisfied that Mejia had entered the agreement voluntarily and that it was based in fact,
Judge Collyer formally accepted Mejia’s plea of guilty. Jd. at 7-8. As Mejia himself explained, “I
plead guilty because I am guilty.” /d. at 7.

Judge Collyer sentenced Mejia for those crimes a few months later, in October 2012. Min.
Entry 10/05/2012. For the RICO conspiracy conviction, Mejia received fifty-seven months’

imprisonment. Judgment at 3, ECF No. 254. And for the firearms offense, he received a
consecutive sentence of eighty-four months’ imprisonment, thus summing to the agreed upon, 141-
month total. Jd. Mejia also received two terms of supervised release, each for thirty-six months, to
run concurrently after his release from prison. Jd. at 4.

Three years later, the Supreme Court deemed unconstitutional part of a statute with
language much like the provision codifying Mejia’s firearms offense. See Johnson, 576 U.S. at
606 (decided June 26, 2015); compare 18 U.S.C. § 924(e)(2)(B), with 18 U.S.C. § 924(c)(3)(B).
In response, Mejia filed a § 2255 “placeholder” motion in June 2016 levying a Johnson challenge
to his firearms conviction. Mot., ECF No. 628. There, he promised to soon supplement that filing
with a longer submission containing his legal arguments. /d. But his counsel did so only on June
3, 2020—after the passage of another four years. Supp. Mot., ECF No. 662. The government
responded to that supplement in September, and the parties later exchanged several replies and
sur-replies. See Response, ECF No. 671; Reply, ECF No. 672; Sur-Reply, ECF No. 673;
Sur-Sur-Reply, ECF No. 675.

None of those filings gave any sustained treatment to the issue of mootness. But just two
days after Mejia’s counsel had submitted the June 3 “supplement,” Mejia’s prison term expired.
Supp. Mot. at 5, ECF No. 662. He was then released to the custody of Immigration and Customs
Enforcement (ICE) and was deported back to El Salvador on June 12. Joint Dec. at 1, ECF No.
677. The parties eventually notified the Court of that discovery months later, via a joint declaration
in November. Jd. They there explained that an ICE deportation officer had confirmed to the
assigned Assistant United States Attorney that Mejia was no longer in the United States. Jd.

Because now-deported Mejia pointed to no concrete injuries, actual or imminent, that the
Court could redress even if it granted his § 2255 motion, the Court dismissed it as moot on

November 23, 2020. Mem. Op. at 10-11, ECF No. 678. Mejia noted an appeal two days later, but
the Circuit held the appeal in abeyance and directed Mejia to seek a certificate of appealability in
this Court. Not. of Appeal, ECF No. 680; Order of USCA, ECF No. 682. Mejia moved the Court
for that certificate on February 19, 2021. COA Mot., ECF No. 683. The Court did not request a
response from the United States, and the United States did not file one. Mejia’s certificate-of-
appealability motion is thus ripe for review.

In it, Mejia claims that this Court’s mootness holding was erroneous for the following
reasons. First, he says, deportation alone does not toll or arrest the running of a supervised-release
period. COA Mot. at 1-3, ECF No. 683. (With that much, the Court agrees.) So, at least in some
nominal sense, Mejia “remains on” supervised release. Jd. at 1-2. And second, Mejia says, “if [he]
were to return to the United States without authorization before June 5, 2023—the expiration [date]
of his supervised release term—he would be penalized for committing an illegal reentry violation
and also for failing to abide by his supervised release conditions.” Jd. at 3. For those reasons,
supposedly, Mejia’s original § 2255 motion still presents a live case or controversy. Jd. at 3-4.

Upon reviewing those arguments, though, the Court found them non-responsive to the
central question whether Mejia still endures any concrete injury from his firearms conviction that
the Court could redress by granting his § 2255 motion. For while Mejia’s supervised-release period
may be ticking down, Mejia himself—far away in El Salvador—has never shown that this nominal
release period actually imposes “any restraint on [his] liberty.” Mem. Op. at 8, ECF No. 678. Such
restraints would no doubt be concrete injuries under Supreme Court precedent, but Mejia points to
none. Cf Spencer v. Kenma, 523 U.S. 1, 7 (1998). Rather, he’s simply broached the speculative
possibility that he might illegally re-enter our country and thus that he might become subject to

hypothetical future penalties. COA Mot. at 3, ECF No. 683.
So, to discern whether Mejia truly has any real-world “restraint on [his] liberty” from the
nominal supervised-release period, the Court invited the Probation Office to detail the extent to
which its officers are supervising Mejia. Mem. Op. at 8, ECF No. 678; Order, ECF No. 684. The
Probation Office responded with a memorandum on April 20, 2021. Prob. Mem, ECF No. 685.
There, Probation explained that it “does not monitor [Mejia’s] daily activities in El Salvador.” Jd.
at 2 (emphasis added). Unlike an offender on supervised release in the United States, then, Mejia
has complied with none of the relevant release conditions. /d. The Probation Office has none of
Mejia’s drug tests, has received no international phone calls from El Salvador checking in, and has
no proof that Mejia has lawful employment or is avoiding firearms. Jd. All Probation does,
apparently, is run Mejia’s name once or twice a year to see whether any new arrests have appeared
in its database. /d.' Probation thus re-affirmed that Mejia has no actual “restraint on [his] liberty”
this Court could redress by granting his § 2255 motion. Cf Mem. Op. at 8, ECF No. 678. And
despite his (or, at least, his lawyer’s) desire to litigate that challenge, Mejia didn’t dispute any of
the Probation Office’s memorandum.

The Court will explain below why those uncontested facts render Mejia’s Johnson
challenge not just moot, but not even arguably live. First, though, it details the standards governing

adjudication of certificate-of-appealability motions.

' And merely having one’s name in some database isn’t alone a real-world injury-in-fact that can support Article II]
jurisdiction. See Owner-Operator Indep. Drivers Ass’n v. U.S. Dep’t of Transp., 879 F.3d 339, 341-45 (D.C. Cir.
2018).

? An interesting question the D.C. Circuit might investigate is how Mejia authorized his lawyer’s decision to appeal
this case when no one, apparently, has seen or heard from Mejia since his deportation a year ago. See Roe v. Flores-
Ortega, 528 U.S. 470, 479 (2000) (“[T]he decision to appeal rests with the defendant[.]”); Legal Ethics, LAWYER’S
DESKBOOK ON PROFESSIONAL RESPONSIBILITY § 1.2—2(a) (2011-12 ed.) (‘On these significant and central issues,
such as the question of... whether to appeal, the client should have the final say.”); RESTATEMENT (THIRD) OF THE
LAW GOVERNING LAWYERS § 22(1) (2000) (“[T]he following and comparable decisions are reserved to the
client[:] ... whether to appeal in a civil proceeding or criminal prosecution[.]”).

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Il. LEGAL STANDARD?

Passed in 1996, the Anti-Terrorism and Effective Death Penalty Act (AEDPA) sought to
bring finality to criminal convictions by imposing “gatekeeping” mechanisms upon the waves of
successive and often frivolous collateral attacks lodged in federal courts. See Williams v. Taylor,
529 U.S. 420, 436 (2000); Felker v. Turpin, 518 U.S. 651, 657 (1996); see also 110 Stat. 1214.
Under its framework, defendants have “no absolute entitlement” to appeal the denial of their
petitions. Miller-El v. Cockrell, 537 U.S. 322, 335 (2003) (citing 28 U.S.C. § 2253). Rather, they
must satisfy AEDPA’s appellate gatekeeping mechanism by first obtaining a “certificate of
appealability.” Slack v. McDaniel, 529 U.S. 473, 480-81 (2000); see also § 2253. That certificate
may issue “only if the applicant has made a substantial showing of the denial of a constitutional
right.” § 2253 (emphasis added). And without it, the defendant may not appeal—thus securing
AEDPA’s goal of keeping circuit courts’ dockets free of meritless petitions.

In construing § 2253, the Supreme Court has counseled: that courts should not issue
certificates of appealability as “a matter of course.” Miller-El, 537 U.S. at 337. But the defendant
need not show that he would succeed on appeal. Rather, a defendant makes a “substantial showing
of the denial of a constitutional right” when he “demonstrate[s] that reasonable jurists would find
the district court’s assessment of the constitutional claims debatable or wrong.” Jd. at 338. Thus,
Mejia must show that “jurists of reason would find it debatable whether his petition states a valid
claim of the denial of a constitutional right.” Williams v. Martinez, 586 F.3d 995, 997-98 (D.C.
Cir. 2009). Specifically, he must show that reasonable jurists would find debatable this Court’s

conclusion that his § 2255 motion is moot.

3 The Court recently explained the legal standard governing adjudication of certificate-of-appealability motions in the
case United States v. Bogle. See Order, ECF No. 102, United States v. Bogle (D.D.C. Jan. 11, 2021) (Case No. 1:95-
cr-00298-RCL-1). The Court reproduces that discussion in its present “legal standard” section.

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Ul. DISCUSSION

Mejia cannot make that showing, however, under basic principles of Article UI jurisdiction.
The Court illustrates that point in the three sections that follow. First, it sets out the justiciability
principles that render Mejia’s § 2255 motion moot. Second, it summarizes its earlier holdings on
mootness and explains why those holdings—flowing from those basic jurisdictional principles—
aren’t reasonably debatable. And third, it shows why Mejia’s present certificate-of-appealability
motion, which relies on speculative arguments about future lawbreaking long-rejected by the
Supreme Court, only underscores that this Court’s mootness holdings aren’t reasonably debatable.

A. The Basic Article III Jurisdictional Requirements Governing This Case

Article III of the United States Constitution does not authorize federal courts to issue
“advisory opinions” on abstract questions of law. Preiser v. Newkirk, 422 U.S. 395, 401 (1975);
see also Richard H. Fallon, Jr. et al., The Federal Courts and the Federal System 50 (7th ed. 2015)
(calling the advisory-opinion prohibition “an uncontroversial and central element of our
understanding of federal judicial power’). Rather, federal courts’ subject-matter jurisdiction
extends only to live “cases” and “controversies.”* U.S. Const., Art. III, § 2. As the Supreme Court
has explained, “a federal court has neither the power to render advisory opinions nor to decide
questions that cannot affect the rights of litigants in the case before them.” Preiser, 422 U.S. at
401. Instead, the litigant invoking jurisdiction “must have suffered, or be threatened with, an actual
injury traceable to the defendant and likely to be redressed by a favorable judicial decision.” United

States v. Juvenile Male, 564 U.S. 932, 938 (2011) (per curiam) (quoting Spencer, 523 U.S. at 7).

4 And because mootness is thus a subject-matter jurisdictional defect, the Court must raise the issue sua sponte, just
as it did in this case. See Genesis Healthcare Corp. v. Symczyk, 569 U.S. 66, 78-79 (2013); Gonzales v. Thaler, 565
U.S. 134, 141 (2012).
To safeguard those jurisdictional limits, the Supreme Court has devised several
“Susticiability” doctrines that dictate when courts may adjudicate some litigant’s grievance. Fallon
et al., supra, at 49. The first relevant doctrine is “standing,” which defines the sort of interest a
litigant must possess to invoke federal jurisdiction at the suit’s outset. See Lujan v. Def. of Wildlife,
504 U.S. 555, 560 (1992). To have standing, the litigant (here, Mejia) must make three showings.
First, he “must have suffered an ‘injury in fact’—an invasion of a legally protected interest which
is (a) concrete and particularized and (b) ‘actual or imminent, not “conjectural” or
“hypothetical.”’” Jd. (cleaned up). To satisfy the concreteness requirement, the complained-of
injury must be “de facto”; that is, it must exist in the real world. Spokeo, Inc: v. Robins, 136 S. Ct.
1540, 1548 (2016). Purely legal injuries, by contrast, such as a defendant’s bare violation of a
statutory requirement without some independent, real-world consequence, do not suffice to
establish standing. Jd. at 1549. And for an injury to be actual or imminent, the litigant must point
to something more than speculative “allegations of possible future injury.” Clapper v. Amnesty
Int'l USA, 568 U.S. 398, 409 (2013). As for the second showing, “there must be a causal
connection between the injury and the conduct complained of.” Def: of Wildlife, 504 U.S. at 560.
And third, “it must be likely... that the injury will be redressed by a favorable decision.”
Td. at 561.

This concrete and redressable injury-in-fact must also persist throughout the life of the
lawsuit; if the injury vanishes, so too does jurisdiction. Spencer, 523 U.S. at 7. “Throughout the
litigation,” the Supreme Court has explained, the litigant “must have suffered, or be threatened
with, an actual injury traceable to the defendant and likely to be redressed by a favorable judicial
decision.” /d. (emphasis added). By contrast, the suit becomes “moot” if the complained-of injury

ceases or can no longer be redressed before the case becomes final. /d. For that reason, we
sometimes think of mootness as the standing requirement extended across a timeframe. Fallon et
al., supra, at 199 (citing Henry Monaghan, Constitutional Adjudication: The Who and When, 82
Yale L.J. 1363, 1384 (1973)). To be sure, mootness and standing aren’t exactly equivalent. Jd. at
200. A couple of important mootness “exceptions” (capable of repetition yet evading review and
voluntary cessation) can allow a suit to continue, even if the plaintiff couldn’t have started the suit
on those bases. /d.; see also Friends of the Earth v. Laidlaw Env. Serv. (TOC) Inc., 528 U.S. 167,
190 (2000). But those exceptions aren’t relevant here—Mejia invokes neither—so the standing-
across-a-timeframe idea is a useful heuristic. In other words, Mejia must show that he continues
to this day to have some concrete and actual (or imminent) injury-in-fact capable of redress by a
favorable decision of this Court. Without that showing, the Court is powerless to entertain his
Johnson challenge. DeFunis v. Odegaard, 416 U.S. 312, 316 (1974).

Of special relevance here, there are also a few ways that Mejia cannot show a concrete and
redressable injury under the Supreme Court’s precedent. One is by pointing to the hypothetical
possibility that he might violate an unchallenged criminal statute in the future and thus suffer some
unwanted consequence—an argumentative strategy the Supreme Court has long rejected. See
O’Shea v. Littleton, 414 U.S. 488, 496 (1974). The Supreme Court’s 1974 decision in O'Shea v.
Littleton neatly illustrates that point. Jd. There, respondents associated with the civil rights
movement alleged that if they violated admittedly valid criminal laws, they might become subject
to discriminatory due process and equal protection violations within the justice system of
Alexander County, Illinois. Jd. at 491, 497. Thus, they sought an injunction against those allegedly
discriminatory practices. Jd. at 492. But the Supreme Court explained that the respondents could

not “show an existing controversy simply because they anticipate[d] violating lawful criminal

10
statutes and being tried for their offense, in which event they may appear before petitioners and, if
they do, [] be affected by the allegedly illegal conduct charged.” Id. at 496-97.

The Supreme Court noted that this merely hypothetical injury “takes us into the area of
speculation and conjecture.” Jd. at 497. Indeed, the respondents lacked an account of why those
future events might unfold; they had no evidence of “specific threats . . . made against them.” Jd.
The Court was thus “unable to conclude that the case-or-controversy requirement [wa]s satisfied
by general assertions or inferences that in the course of their activities[,] respondents will be
prosecuted for violating valid criminal laws.” Jd. Further, the Court noted, it should be presumed
for standing purposes that litigants obey valid and unchallenged criminal laws—a presumption
obviating reliance on hypothetical future prosecutions. /d. As the Court explained, “[w]e assume
that respondents will conduct their activities within the law and so avoid prosecution and
conviction as well as exposure to the challenged course of conduct said to be followed by
petitioners.” Jd. Without evidence of any other purported interests at stake, the Court held the
respondents’ challenge moot.

The Supreme Court reiterated those points a few years later in Lane v. Williams. 455 U.S.
624 (1982). There, respondents from Illinois pleaded guilty to burglary charges that, to their later
surprise, entailed mandatory parole. /d. at 625-27. They sought to challenge their parole terms as
due-process violations, since they hadn’t known the terms were mandatory when entering their
plea agreements. /d. at 625. But as the case worked its way through the court system, their parole
terms expired. Jd. at 628-29. The Supreme Court thus declared the due-process challenges moot.
Id. at 631-32. As it explained, “[r]espondents are no longer subject to any direct restraint as a
result of the parole term,” and “their liberty or freedom of movement [was] not in any way curtailed

by a parole term that has expired.” Jd. at 631. They also pointed to no other continuing

11
consequences from the old parole terms. /d. at 632. “At most,” all they could show was that if they
were to commit some future crimes, be convicted for them, and then be sentenced, their old parole
terms might affect those future sentencings. Jd. at 632-33.

Just like in O’Shea, the Supreme Court rejected this hypothetical chain of future
lawbreaking as a persuasive reason to exercise jurisdiction. “Parole violations that remain a part
of respondents’ records,” it said, “cannot affect a subsequent parole determination unless
respondents again violate state law, are returned to prison, and become eligible for parole.
Respondents themselves are able—and indeed required by law—to prevent that from occurring.”
Id. at 632 n.13. Lacking concrete restraints on the respondents’ liberty, and presented only with
speculative claims about future violations of unchallenged criminal statutes, the Supreme Court
held the case moot. Jd. at 633-34; see also Spencer, 523 U.S. at 15 (similarly rejecting a purported
litigable interest that hinged on future violation of unchallenged criminal laws). So once again,
speculative claims about future criminality could not support Article III jurisdiction.

Turning to more recent cases, this Court would note that the longstanding principles
detailed above accord with the Supreme Court’s latest pronouncements on imminence and
concreteness. On the latter issue, take the 2020 decision Thole v. U.S. Bank N.A., 140 S. Ct. 1615
(2020). The case involved two defined-benefit-plan beneficiaries (also serving as class
representatives) who alleged mismanagement by their plan’s administrators. Jd. at 1619. A
declaration of mismanagement might have given these named plaintiffs some psychic satisfaction,
or it might have helped the other, unnamed members of the class. /d. at 1620~—21. But as the
Supreme Court pointed out, the two named beneficiaries were entitled to exactly the same benefit

disbursements no matter whether they won the suit or lost it. Jd. at 1619. Because the case’s result,

12
however it came out, couldn’t affect the beneficiaries’ real-world interests, they had “no concrete
stake in th[e] lawsuit,” and thus no Article II standing. Jd. at 1619.

As for imminence, the Supreme Court’s Carney decision likewise re-affirmed Lujan’s
admonition that merely speculative, “‘some-day’ intentions” do not suffice to establish a concrete
injury. Carney v. Adams, 141 S. Ct. 493, 502 (2020). Carney concerned a Delaware citizen who
objected in principle to the Delaware judiciary’s “political balance” requirement, but who had
taken no significant steps to run for a judicial position himself. Jd. at 496-97; 500-01. The
Supreme Court held that it was without jurisdiction to adjudicate his First-Amendment challenge.
Id. at 503. Indeed, it noted, entertaining a case in which the litigant’s interest sounds in mere
conjecture (rather than a concrete injury) “would significantly weaken the longstanding legal
doctrine preventing [courts] from providing advisory opinions” incapable of affecting the rights of
the litigants before them. Jd. at 501. So now as then, a concrete and redressable injury-in-fact

remains the sine qua non of federal jurisdiction.

B. The Court’s Holding That These Basic Principles Dictate That Mejia’s
§ 2255 Motion is Moot Is Not Reasonably Debatable

In its dismissal of Mejia’s § 2255 motion, the Court examined all the conceivable reasons
that the motion might remain live, and it explained why none of those reasons even arguably
defeated mootness. Mem. Op. 7-10, ECF No. 678. The Court reviews that analysis below. It also
notes that Mejia’s present certificate-of-appealability motion does not even contest the first three
of the following holdings from the Court’s earlier opinion; it disputes only the fourth, concerning
supervised release. See COA Mot., ECF No. 683. In Part III.C of this opinion, the Court explains
why that last, contested point obviously fails to rebut the mootness holding. But for now, the Court

summarizes the uncontested reasons why Mejia’s motion does not present a live controversy.

13
First, the Court analyzed whether Mejia’s firearms conviction might cause him to endure
any “civil disabilities” that could be redressed by the conviction’s invalidation. Mem. Op. at 8-9,
ECF No. 678. The “civil disabilities” concept emerged from a couple of Supreme Court cases in
the 1960s, which held that the mere expiration of a prison sentence does not automatically moot
an attack on the underlying conviction. See Carafas v. LaVallee, 391 U.S. 234, 237 (1968); Sibron
v. New York, 392 U.S. 40, 57 (1968). Rather, the conviction might still entail some litigable,
“collateral consequences,” given our society’s practice of felon disfranchisement. Sibron, 392 U.S.
at 56. These older Supreme Court cases also sometimes suggested that courts should presume the
litigant might suffer such future consequences (thus satisfying the concrete-injury requirement)
unless there were “no possibility” that those consequences would materialize. Jd. at 57. Later on,
the Supreme Court cast this presumption’s validity into significant doubt. In its 1998 Spencer
decision, the Supreme Court explained that ad hoc loosening of the imminence and concreteness
requirements in the collateral-attack context has no basis in ordinary jurisdictional principles.
Spencer, 523 U.S. at 10-11. And the Supreme Court has explicitly clarified that collateral
consequences shouldn’t be presumed when there aren’t any civil disabilities the litigant might
possibly face. See Lane, 455 U.S. at 632 n.13 (declining to presume collateral consequences where
the record affirmatively dispelled their possibility).

Following those instructions, this Court examined whether there were any civil disabilities
Mejia might endure that the Court could redress with a favorable ruling on his § 2255 motion.
Mem. Op. at 8-9, ECF No. 678. If Mejia were a U.S. citizen, for instance, he might have a valid
gripe that he couldn’t vote, serve as a public official or on a jury, serve in the armed forces, or get
certain business licenses. /d. But as the Court noted, none of these arguments makes any sense in

the context of Mejia’s specific case. Jd. Mejia has an independent and unchallenged felony RICO

14
conviction that would disfranchise him all the same, irrespective of how the Court ruled on his
§ 2255 motion. Jd. More importantly, Mejia is not just a felon, but a deported, non-citizen felon
permanently barred from re-entry. Jd.; see also infra 15-16. So there is no reason to suspect that
he could one day engage in civic activities in the United States like voting or jury service but for
his firearms conviction. To the contrary, he can’t re-enter the United States at all. Jd. And even if
he could, he still couldn’t engage in those civic activities even if the Court declared his firearms
conviction invalid. So on those facts, there was no reason to conclude that Mejia had a live interest
in combatting future civil disabilities via his § 2255 motion. Tellingly, Mejia doesn’t challenge
this holding in his present certificate-of-appealability motion.

Second, and relatedly, the Court noted that even if it granted Mejia’s § 2255 motion, doing
so wouldn’t redress Mejia’s permanent bar from re-entering the United States. Mem. Op. at 9-10,
ECF No. 678. As the Court explained, 8 U.S.C. § 1182(a)(2)(A)(i)() bars the re-admission of “any
alien convicted of, or who admits having committed, or who admits committing acts which
constitute the essential elements of ...a crime involving moral turpitude (other than a purely
political offense) or an attempt or conspiracy to commit such a crime.” Jd. at 9; 8 U.S.C.
§ 1182(a)(2)(A)(G)(D). As part of his plea agreement and proffer, and during his allocution before
Judge Collyer, Mejia admitted committing just such crimes. Plea Agreement, ECF No. 216;
Proffer, ECF No. 217; Appendix at 6-7, ECF No. 678. Indeed, as the Board of Immigration
Appeals (BIA) and various Circuits have held, both assault with a dangerous weapon and
racketeering are crimes involving moral turpitude. See Safaryan v. Barr, 975 F.3d 976, 979 (9th
Cir. 2020); Matter of Jing Wu, 27 1. & N. Dec. 8 (BIA 2017); Estrada-Rodriguez v. Lynch, 825
F.3d 397, 405 (8th Cir. 2016); Smalley v. Ashcroft, 354 F.3d 332, 338-39 (Sth Cir. 2003). Mejia

was also convicted of the latter crime via his plea bargain, which is yet another avenue to

15
inadmissibility under § 1182(a)(2)(A)(@)(). Judgment at 1, ECF No. 254. Mejia has never
challenged the validity of that conviction, nor that of his related admissions to his other felonies.
Cf Abreu v. Superintendent Smithfield SCI, 971 F.3d 403, 406 (3d Cir. 2020) (holding a § 2254
petition moot in analogous circumstances). Mejia’s present certificate-of-appealability motion also
doesn’t contest that he’s permanently barred from re-entering the United States, irrespective of
how the Court rules on his § 2255 motion. So just as with the civil-disabilities argument, he’!] have
forfeited that issue on appeal too. See Lambrix v. Sec’y, Fla. Dep’t of Corr., 851 F.3d 1158, 1170
n.6 (11th Cir. 2017).

Third, the Court noted that Mejia’s possible psychic dissatisfaction with the chance that his
old firearms conviction is invalid, or any moral stigma he might feel from that conviction, are not
sufficient bases for Article III jurisdiction. Mem. Op. at 10, ECF No. 678. As the Supreme Court
explicitly held in St. Pierre v. United States, “the moral stigma of a judgment which no longer
affects legal rights does not present a. case or controversy for appellate review.”
319 U.S. 41, 43 (1943). As always, what matters is a concrete injury—not the mere desire to
litigate abstract issues untethered to real-world effects. And like with the civil-disabilities and re-
entry bar points, Mejia also declines to dispute this third holding in his present certificate-of-
appealability motion.

So what does Mejia dispute? As the Court mentioned above, Mejia’s (lawyer’s) gripe with
the Court’s moothess holding—in other words, why that holding is reasonably debatable—hinges
entirely on the issue of supervised release. See COA Mot. at 14. His argument, it turns out, isn’t
remotely persuasive. But since it’s the sole ground that Mejia raised in support of his request for a
certificate of appealability, the Court devotes a full section below to explaining why it contradicts

basic principles of Article II jurisdiction.

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C. Mejia’s Sole Ground For a Certificate of Appealability—The
Speculative Possibility of Future Punishment For a Supervised Release
Violation After a Hypothetical Illegal Re-Entry—Only Underscores that
This Court’s Dismissal of Mejia’s $2255 Motion As Moot Is Not
Reasonably Debatable

In his effort to secure a certificate of appealability, Mejia channels all his energy into a
single, two-part syllogism. First, he argues that the Court erred when it held that Mejia “is
not... on supervised release” given his deportation to El Salvador. COA Mot. at 2, ECF No. 683.
Deportation alone, he says, does not terminate or toll the running of a supervised release period.
Id. at 2-3. And second, in the attempt to explain why this nominal release period invests him with
a concrete interest in his Johnson challenge, Mejia argues as follows: Since the supervised-release
period is still running, “if Mr. Mejia were to return to the United States without authorization
before June 5, 2023—the expiration [date] of his supervised release term—he would be penalized
for committing an illegal reentry violation and also for failing to abide by his supervised release
conditions,” one of which was to not illegally re-enter. Jd. at 3. Thus, Mejia says; his § 2255 motion
isn’t moot, and this Court must decide the merits of his Johnson challenge.

But each premise of that syllogism is dead wrong. Take first Mejia’s insistence that
deportation alone cannot toll or terminate the running of a supervised-release period. Jd. at 2-3.
The Court agrees. Its prior opinion never claimed that deportation stops the running of a
supervised-release period, and its mootness holding in no way hinges on that assertion. To the
contrary, the Court held that Mejia “no longer [had] any restraint on [his] liberty from supervised
release” because his release is not being supervised. Mem. Op. at 8, ECF No. 678. Sure, his term
of supervised release continues to exist in some nominal, abstract sense, given that his original

release period will continue to tick down until June 2023. See COA Mot. at 2, ECF No. 683. But

as the Probation Office has explained, it’s not actually monitoring Mejia’s activities in El Salvador.

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Prob. Mem. at 1-2, ECF No. 685. He’s not being held to his supervised release conditions like
providing drug tests or proof of employment, and the Probation Office isn’t taking any action for
those omissions. Id.

What Mejia’s trying to do, really, is confuse the issues by relying on a terminological
ambiguity surrounding the phrase “supervised release.” Supervised release ordinarily refers to both
a time period set out in a court’s criminal judgment and to several conditions the defendant must
obey within that period, under the Probation Office’s supervision. In the ordinary case, the
supervised release period and the supervised release conditions go hand-in-hand: The defendant
must abide by the release conditions so long as the release period continues to tick down. But in
Mejia’s case, his deportation severed the release period from the release conditions. Though the
release period continues to run, Mejia is not actually subject to any release conditions—the liberty
restraints present in an ordinary case that would create a concrete injury supporting Article III
jurisdiction. Cf Spencer, 523 U.S. at 7.

Mejia is not the first defendant to exploit that terminological ambiguity in the attempt to
avoid a mootness holding. Take the Tenth Circuit’s decision in United States v. Vera-Flores. 496
F.3d 1177 (10th Cir. 2007). There, while an illegal-alien defendant named Vera-Flores was
challenging his sentence in the federal courts, he was deported to Mexico. /d. at 1178. Vera-Flores
insisted his case was not moot, since “any errors in sentencing could be corrected on remand by a
reduced term of supervised release.” Jd at 1180. But the government pointed out that the
deportation “rendered [the] supervised release term a practical nullity.” /d. And the Circuit agreed.
As it explained,

Vera-Flores served his sentence and has been deported. Although
legally subject to a three-year term of supervised release, Vera-

Flores is presumably in Mexico. While outside the United States,
Vera-Flores has no obligation to report to a probation officer and is

18
not under the supervision or control of the United States Probation
Office. In short, Vera-Flores’[s] liberty is in no way affected by any
sentencing error allegedly committed by the district court[,] because
Vera-Flores’[s] deportation has eliminated ll practical
consequences associated with serving a term of supervised release.
Vera-Flores does not, therefore, have an actual injury likely to be
redressed by a favorable judicial decision, even assuming arguendo
that Vera-Flores states valid claims on appeal which would be likely
to result in the modification or elimination of his supervised release
term on remand. [...] Because this court determines Vera-Flores
has sustained no actual injury which this court can remedy and
because Vera-Flores has failed to demonstrate the presence of any
collateral consequences... this court concludes Vera-Flores’[s]
removal has rendered his appeal moot.
Td. at 1180-81.

So too here. Mejia invokes the mere running of the supervised-release term without linking
it to any “actual injury” or any restraint on his liberty that term entails. Cf id. But precisely as the
Tenth Circuit explained, what matters for the mootness analysis is not whether some nominal
period of supervised release continues to run in a deported alien’s absence. Jd. What matters,
following basic justiciability principles, is whether the alien has an “actual injury likely to be
redressed by a favorable decision.” Jd. Much like Vera-Flores didn’t make that showing, Mejia
hasn’t either. So much like Vera-Flores, Mejia can’t avoid mootness merely by pointing out that
his supervised-release term happens to be ticking down.

Tacitly conceding that merely labeling the present period “supervised release” isn’t alone
sufficient to support Article III jurisdiction, Mejia proceeds to the second step of his syllogism.
COA Mot. at 3, ECF No. 693. If he “were to return to the United States without authorization
before June 5, 2023— the expiration [date] of his supervised release term,” he says, “he would be

penalized for committing an illegal reentry violation and also for failing to abide by his supervised

release conditions,” one of which was to not illegally re-enter during the supervised-release period.

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Id. So maybe it’s that hypothetical future prosecution, Mejia says, that makes the Court’s earlier
mootness holding reasonably debatable.

Where to begin? How about concreteness. As the Court explained above, merely raising
some abstract legal gripe isn’t sufficient for Article III jurisdiction. Rather, there must be some
independent, “actually existing,” “de facto,” concrete injury the litigant seeks to vindicate. Spokeo,
136 S. Ct. at 1548. But Mejia’s certificate-of-appealability motion essentially concedes that no
such injury now exists.° Indeed, despite his protestation at his syllogism’s Step One that he’s still
“on” supervised release, he doesn’t point to any present restraint on his liberty from that nominal
release period. So he doesn’t have any present injury that the Court could redress with a favorable
ruling on his § 2255 motion.

Instead, Mejia points to the hypothetical future injury of a prosecution for supervised-
release violations if he were to illegally re-enter before June 2023. COA Mot. at 3, ECF No. 683.
But that argument obviously fails under the Supreme Court’s longstanding precedent. Since Mejia
asserts no actual injury, the threatened future prosecution must be “imminent’”—there must be at
least a “substantial risk” of its occurrence. Amnesty Int’l USA, 568 U.S. at 409, 414 n.5. To
illustrate that risk, Mejia points to a hypothetical chain of future lawbreaking. COA Mot. at 3, ECF
No. 683. He may decide to illegally re-enter the United States, at which point he may be caught.
Id. He may then be prosecuted, and that prosecution may include counts not just for illegal re-
entry, see 8 U.S.C. § 1326, but also for supervised-release violations. COA Mot. at 3, ECF No.

683.

> A related but important point is that Mejia isn’t seeking purely retrospective relief (that is, money damages) for some
past injury. If that were the case, standing and mootness wouldn’t hinge on whether Mejia also demonstrated the threat
of another, future injury. He’d already have shown a concrete and actual injury in the past, and thus his case could
proceed. See City of Los Angeles v. Lyons, 461 U.S. 95, 105 (1983); see also Uzuegbunam vy. Preczewski, 141 S. Ct.
792, 796 (2021). But this case is different. Mejia wants his firearms conviction invalidated, apparently, because of the
prospective injury of a future prosecution. COA Mot. at 3, ECF No. 683. Hence why the Court must analyze whether
that purported future injury is sufficiently concrete and imminent to support jurisdiction.

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Not only is that chain the sort of “conjecture” the Supreme Court has long disapproved in
a general sense, but it’s precisely the set of inferences that the Supreme Court has explained over
and over is insufficient to show a litigable interest. Recall O’Shea. There, the Court held that the
respondents could not “show an existing controversy simply because they anticipate violating
lawful criminal statutes and being tried for their offense.” O'Shea, 414 U.S. at 496-97. To the
contrary, such future criminality took the Court into the area of “speculation and conjecture,” id.
at 497— the definitional antithesis of a sufficiently “imminent” injury for Article II jurisdiction.
Def. of Wildlife, 504 U.S. at 560 (explaining that the relevant injury must be “actual or imminent,
not ‘conjectural’”). Moreover, since the respondents had an independent obligation to obey those
criminal laws, the Court presumed that they would follow them. O'Shea, 414 US. at 497. In other
words, they could not manufacture jurisdiction by threatening to violate unchallenged statutes. Jd;

see also Lane, 455 U.S. at 632 n.13.

6 The only appellate case Mejia cites in his certificate-of-appealability motion that appears to support his claims is
United States v. Rivas-Gonzalez, 365 F.3d 806, 809 (9th Cir. 2004). There, the Ninth Circuit permitted an illegal alien
to continue challenging his sentence post-deportation because, the Circuit postulated, he might some day re-enter and
then “be required to comply with the conditions of his yet unserved two-year term of supervised release.” /d. at 809.
This Juxurious view of the case-or-controversy requirement apparently hinged on the Circuit’s claim that though “the
likelihood of Rivas’s reentry into the United States is speculative,” that fact was “of no moment.” /d. The Circuit
provided no further explanation of why a merely “speculative” stake in a lawsuit suffices for Article III jurisdiction.
And that omission is unsurprising, since the view that a merely speculative future injury suffices for such jurisdiction
is patently erroneous. Tellingly, the Circuit did not even attempt to distinguish such cases as O'Shea, Lane, or Spencer.
See 414 U.S. at 496-97; 455 U.S. at 631-32; 523 U.S. at 15. The only supporting Supreme Court case the Circuit cited
was United States v. Villamonte-Marquez, 462 U.S. 579 (1983). But that case was readily distinguishable from the
situation the Ninth Circuit confronted. There, two aliens were prosecuted and convicted for drug offenses and then
deported. Jd. at 583. The Fifth Circuit reversed the convictions on appeal, id., and then the government—not the
aliens—appealed to the Supreme Court to have the convictions reinstated. /d.; see also 581 n.2. The Court held that
the case wasn’t moot given the government's \itigable interest in re-instating the aliens’ convictions. /d@. That holding
was correct, since the government has a classic litigable interest in securing convictions for violations of its laws. See
Ann Woolhandler & Caleb Nelson, Does History Defeat Standing Doctrine?, 102 Mich. L. Rev. 689, 695-701.
Further, if the government prevailed at the Supreme Court, it was certain, not speculative, that the win would vindicate
those governmental interests. But that has nothing to do with the scenario where the a/ien seeks to invoke federal
jurisdiction and does so only based on speculative potential interests. The Ninth Circuit failed to recognize or
appreciate this distinction, and so declined to perform a basic jurisdictional analysis to determine whether a case or
controversy still existed. Because Rivas-Gonzalez is patently erroneous, it does not suffice to make this Court’s
mootness holding reasonably debatable.

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Those principles apply here with full force. Mejia has an independent obligation not to
violate our laws by illegally re-entering. See 8 U.S.C. § 1326. For that matter, he’d have the same
obligation whether or not his supervised-release term were lifted. The Supreme Court has thus
directly instructed lower courts not to heed the very arguments Mejia now makes.

So what’s Mejia’s response to all this? Nothing, really. He cites several cases to bolster the
irrelevant point that deportation alone doesn’t toll a supervised release period, thus futilely
attempting to claim that this Court’s mootness holding “conflicts with other courts” that have held
that supervised-release terms continue to run after deportation. COA Mot. at 3, ECF No. 683. But
there’s no “conflict,” since this Court agrees with those other holdings. What matters for the
justiciability analysis—just as this Court said on the first go-around—is not whether the supervised
release period continues to run in some abstract sense, but whether it actually imposes “any
restraint on Mejia’s liberty.” Mem. Op. at 8, ECF No. 678. Mejia’s present certificate-of-
appealability motion has done a lot to answer that question, just not in the way Mejia thinks. Far
from revealing some real-world interest that could support adjudication of his Johnson claim,
Mejia’s present motion musters only a speculative chain of future lawbreaking as the sole interest
he has in that challenge. That chain is not just ephemeral and conjectural. It’s barred by
unambiguous Supreme Court precedent.

IV. CONCLUSION

Wilfredo Mejia is a convicted felon, a resident of El Salvador, permanently barred from
ever re-entering the United States, and an unpunished shirker of supervised-release conditions. If
the Court granted his § 2255 motion, none of those facts would change. He would still be a felon,
still be residing in El Salvador, still be barred from re-entry, and still be following no supervised-

release conditions. His § 2255 motion is moot, and his arguments against that conclusion aren’t

22
even reasonably debatable. So his certificate of appealability will be DENIED. A separate Order

consistent with this Memorandum Opinion shall issue this date.

Pa
SIGNED this 22 Gay of May, 2021.

“Ge Let

Royce C. Lamberth
United States District Judge

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