United States v. Lipscomb

Case: 18-11419 Document: 00516731261 Page: 1 Date Filed: 04/28/2023

United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit

FILED
No. 18-11419 April 28, 2023
consolidated with
Lyle W. Cayce
No. 19-10948 Clerk

United States of America,

Plaintiff—Appellee,

versus

Eddie Lamont Lipscomb,

Defendant—Appellant.

Appeals from the United States District Court
for the Northern District of Texas
USDC No. 3:07-CR-357-1

Before Smith, Clement, and Wilson, Circuit Judges.
Jerry E. Smith, Circuit Judge:
This case arises from the unusually tortuous procedural history of
Eddie Lipscomb’s criminal sentencing after his conviction for federal crimes.
The district court initially sentenced Lipscomb to a twenty-year term of
imprisonment followed by a five-year term of supervised release (“SR”).
Later, however, the court vacated that sentence and imposed ten years in
prison and three years of SR.
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Lipscomb fully served that reduced prison term and began his SR. But
because he violated the conditions of SR, the district court revoked it and
imposed additional terms of imprisonment and SR. After serving a new
prison term and beginning the new term of SR, Lipscomb again violated the
conditions, so the court revoked SR a second time.
In the meantime, the government appealed Lipscomb’s reduced sen-
tence and prevailed. We vacated the reduced sentence and ordered the dis-
trict court to reimpose his original, twenty-year sentence.
Lipscomb is currently serving that twenty-year term but appeals the
two revocation judgments. Because the revocation judgments are part of
Lipscomb’s reduced sentence—a sentence we vacated—we now vacate the
two revocation judgments, as well, and render judgment accordingly.

I.
In 2008, Lipscomb pleaded guilty of being a felon in possession of a
firearm in violation of 18 U.S.C. §§ 922(g)(1) and 924(e)(1). He was sen-
tenced to twenty years of imprisonment and five years of SR.
Because the district court concluded that Lipscomb’s § 922(g) viola-
tion was a crime of violence and because Lipscomb had numerous robbery
convictions and a burglary conviction, the court also determined that he was
a “career offender” and enhanced his sentence accordingly under U.S.S.G.
§ 4B1.1. Lipscomb appealed the career-offender enhancement, and we
affirmed.
Then things got complicated. In 2015, Johnson v. United States
narrowed the definition of “violent felony” in the Armed Career Criminal
Act (specifically, in § 924(e)) by enjoining enforcement of the residual

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clause. 576 U.S. 591, 597 (2015). 1
In response to Johnson, in 2016, Lipscomb moved under 28 U.S.C.
§ 2255 to vacate his sentence, positing that he was not an armed career
criminal under § 924(e). He reasoned that his prior robbery and burglary
convictions did not meet the post-Johnson definition of “violent felony.”
The district court agreed and vacated Lipscomb’s sentence because it found
that robbery is not a crime of violence in Texas. 2 In 2018, it resentenced
Lipscomb, without the § 924(e) enhancement, to ten years of imprisonment
and three years of SR.
The resentencing created two parallel tracks in Lipscomb’s case. The
first was litigation concerning the new sentence. In 2018, the government
appealed both the district court’s order to vacate and the new sentence. That
appeal was eventually successful: This court held that Lipscomb’s prior
robberies were violent felonies and that the district court had erred in not
imposing the § 924(e) enhancement. United States v. Lipscomb, 982 F.3d 927,
928–30 (5th Cir. 2020). We therefore ordered the district court to reinstate
its original sentence. Id. at 931.
The Supreme Court granted certiorari, vacated the panel opinion, and
remanded for reconsideration in light of its recent jurisprudence on the

1
The Court held that the residual clause was unconstitutionally vague. That clause
(as relevant here) included in the definition of “violent felony” any felony involving the
use or carrying of a gun “that presents a serious potential risk of physical injury to another.”
18 U.S.C. § 924(e)(2)(B)(ii). Since Johnson, then, the definition of “violent felony”
includes only felonies involving the use of a gun that (i) have as an element the use (real,
attempted, or threatened) of physical force against another; or (ii) are instances of burglary,
arson, or extortion, or involve the use of explosives. Id. § 924(e)(2)(B)(i)–(ii).
2
The court did not reach the question of whether burglary is a crime of violence in
Texas because the ruling on the robbery claims was enough to make Lipscomb ineligible for
enhancement under § 924(e).

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definition of “violent felony” in § 924(e). See Lipscomb v. United States,
142 S. Ct. 59 (2021). On remand, the panel adhered to its judgment, vacated
the district court’s order granting Lipscomb’s § 2255 motion, and remanded,
ordering the district court to reinstate its original judgment. United States v.
Lipscomb, No. 18-11168, 2022 WL 327472, at *2 (5th Cir. Feb. 3, 2022) (per
curiam) (unpublished). The district court did so in July 2022.
Lipscomb sought certiorari from the second panel decision as well, but
to no avail. See Lipscomb v. United States, 143 S. Ct. 1061(2023).
* * *
We now jump to the second track, the one upon which the consoli-
dated appeals are traveling. By the time the district court granted Lips-
comb’s § 2255 motion and resentenced him to ten years in prison in July
2018, Lipscomb had already been in prison for over ten years while serving
his original twenty-year sentence. He therefore began his three-year term of
SR essentially immediately, on July 10.
On October 31, 2018, however, the court revoked Lipscomb’s SR
because he had violated its conditions. The court then sentenced him to
twelve months and one day of imprisonment followed by one year and 364
days of SR. When discussing the prison term, the court stated that it
intended for Lipscomb to “serve th[e] full sentence . . . and that no Credit for
the over[-]served time should be applied to reduce th[e] sentence.” (Empha-
sis removed.) But the court did acknowledge that the Bureau of Prisons
(“BOP”), not the court, was the ultimate authority to determine credit.
The court’s intent did not prevail: Lipscomb got his credits and began
SR on November 9, 2018. The court revoked SR yet again on August 23,
2019, and sentenced him to 702 days of imprisonment but no further SR.
The court based the length of Lipscomb’s prison term on his remaining
612 days of credit: The court wanted him to spend ninety days in jail, so it

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sentenced him to a total term of 702 days.
The court was clear that using up Lipscomb’s credits was the sole
basis for the decision, stating that it would be “dishonest” for the court to
“pretend that [it was] doing it for some other reason.” It also acknowledged
Lipscomb’s concern that using up credits through the term of SR could cre-
ate a future problem for Lipscomb pending the resolution of his main appeal, 3
because credits used up by the term of SR could then be unavailable for his
underlying sentence. In response, although the government suggested that
an “equitable remedy” may be available in that situation, it was ultimately
noncommittal.
Lipscomb then appealed both the first and the second revocation
judgments.
* * *
Lipscomb’s current status is as follows: He is serving the original and
valid twenty-year sentence. His reduced sentence has been vacated, but the
revocation judgments have not. According to information provided by the
BOP, the time Lipscomb actually served on the revocation judgments is being
credited against his twenty-year sentence. But the government has not stated
that the current computation will remain in place, and it has acknowledged
that the BOP could alter its view of the time Lipscomb served per the post-
revocation penalties.

II.
Lipscomb raises two issues on appeal. First, how the reinstatement of
his original prison sentence affected the two revocation judgments. Second,

3
And other related cases pending at the time, such as United States v. Herrold,
941 F.3d 173 (5th Cir. 2019) (en banc).

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whether the revocation judgments should be vacated because they were
based on “misinformation of constitutional magnitude.” The first conten-
tion relates to the legal status of the revocation judgments; the second is an
attack on the merits of those judgments.
The government acknowledges that the revocation judgments are at
least superseded by the reimposition of Lipscomb’s original sentence. But in
response to Lipscomb’s contentions, it insists that the district court had the
power to impose the judgments and did not err in imposing them.
Reduced to its essence, this appeal asks us to clarify the legal status of
the revocation judgments. Before doing so, however, we must first assure
ourselves of jurisdiction over the appeals and our power to vacate the judg-
ments. The government suggests that we have no live case or controversy,
given that Lipscomb’s reimposed, twenty-year sentence superseded the
revocation judgments, and the post-revocation penalties are being credited
against his twenty-year sentence. In other words, his appeal is moot.
Lipscomb counters that the revocation judgments have ongoing legal
effect because the BOP has not unequivocally disclaimed the possibility that
it may alter its computation of his sentence and require him to serve both the
twenty-year sentence and the terms imposed in the revocation judgments.
“Whether an appeal is moot is a jurisdictional matter, since it impli-
cates the Article III requirement that there be a live case or controversy.”
United States v. Sosebee, 59 F.4th 151, 154 (5th Cir. 2023) (quoting Bailey v.
Southerland, 821 F.2d 277, 278 (5th Cir. 1987)). For us to have jurisdiction
over an appeal, “[t]he parties must continue to have a ‘personal stake in the
outcome’ of the lawsuit.” Spencer v. Kemna, 523 U.S. 1, 7 (1998) (quoting
Lewis v. Cont’l Bank Corp., 494 U.S. 472, 478 (1990)). “[A]s long as the par-
ties have a concrete interest, however small, in the outcome of the litigation,
the case is not moot.” Knox v. Serv. Emps. Int’l Union, Loc. 1000, 567 U.S.

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298, 307–08 (2012) (alteration in original) (quoting Ellis v. Ry. Clerks,
466 U.S. 435, 442 (1984)). A case therefore becomes moot “only when it is
impossible for a court to grant ‘“any effectual relief whatever” to the pre-
vailing party.’” Id. at 307 (quoting City of Erie v. Pap’s A.M., 529 U.S. 277,
287 (2000)).
We are sympathetic to the government’s position. In general, threat-
ened injuries cannot be mere potentialities: They must at the least be “cer-
tainly impending.” Clapper v. Amnesty Int’l USA, 568 U.S. 398, 409 (2013)
(emphasis omitted) (quoting Whitmore v. Arkansas, 495 U.S. 149, 158
(1990)). It appears that all parties agree that the revocation judgments no
longer have legal effect and that the BOP is currently giving Lipscomb credit
for the time served under them.
Yet the authority upon which the government relies is distinguishable.
The government adverts to Preiser v. Newkirk, which addressed a prisoner’s
transfer to a maximum-security prison. 422 U.S. 395, 398 (1975). The pris-
oner sought both a declaratory judgment that the transfer violated his rights
and injunctions ordering (i) his transfer back to the original prison, (ii) the
expungement of all records of the first transfer, and (iii) a prohibition on
future transfers without a hearing. Preiser held that his case was moot
because, before the district court made its ruling, he had been transferred
back to his original (medium-security) prison. Id. at 398–99. Moreover, cor-
rection authorities had made a notation in his file that the transfer “should
have no bearing in any future determinations” related to his parole or time
allowances. Id. at 402.
Those factors are not present here. Lipscomb does not appeal an
action by the agency that the agency subsequently undid, such as the prison
transfer in Preiser. The instant dispute involves the interpretation and imple-
mentation by the BOP of a judgment by the district court. Nothing has been

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“undone,” because the BOP has no authority to nullify the revocation
judgments—only to incorporate them (or not) into Lipscomb’s sentence
computation per its own policies and standards.
There is also no clear statement or indication by the BOP that the
status quo will invariably persist, i.e., that the BOP will continue to view the
revocation sentences as superseded and to credit Lipscomb’s time served on
them against his twenty-year sentence. Lipscomb’s fear is therefore not com-
pletely “subjective” or entirely “remote and speculative.” Id. at 403.
Although the parties agree that the revocation judgments have been super-
seded, they nevertheless remain on the books, and the BOP has not fore-
closed the possibility that its position regarding them will change. 4
But even if Lipscomb’s appeals were moot, we would still have
authority to vacate the revocation judgments. A federal court is not for-
bidden from acting regarding a matter before it even after it has “determined

4
For similar reasons, we find the case constitutionally ripe for our review. The
ripeness requirement guarantees that “the harm asserted has matured sufficiently to war-
rant judicial intervention.” Warth v. Seldin, 422 U.S. 490, 499 n.10 (1975). The harm in
this case is the extension of Lipscomb’s sentence by incorporating his post-revocation
penalties.
When determining whether a case is ripe for Article III purposes, “we consider
both ‘the fitness of the issues for judicial decision’ and ‘the hardship of withholding court
consideration.’” Stolt-Nielsen S.A. v. AnimalFeeds Int’l Corp., 559 U.S. 662, 670 n.2 (2010)
(quoting Nat’l Park Hosp. Ass’n v. Dep’t of Interior, 538 U.S. 803, 808 (2003)). Here, the
relevant facts are retrospective in nature and relate to the purely legal question of the status
of the revocation judgments. Delaying a resolution of the issue until either the BOP
changes course or Lipscomb serves out his time under the status quo serves no purpose. See
DM Arbor Ct., Ltd. v. City of Houston, 988 F.3d 215, 218 (5th Cir. 2021) (“A case becomes
ripe when it ‘would not benefit from any further factual development and when the court
would be in no better position to adjudicate the issues in the future than it is now.’”
(quoting Pearson v. Holder, 624 F.3d 682, 684 (5th Cir. 2010)). Moreover, as discussed
supra, Lipscomb’s harm is not so remote or speculative that his claims are unfit for reso-
lution now.

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that the requirements of Article III no longer are (or indeed never were)
met.” U.S. Bancorp Mortg. Co. v. Bonner Mall P’ship, 513 U.S. 18, 21 (1994).
Accordingly, Congress has authorized courts to vacate “any judgment,
decree, or order of a court lawfully brought before [them] for review.”
28 U.S.C. § 2106. Because we dispose of Lipscomb’s appeals without reach-
ing the merits of the district court’s decision, there is no jurisdictional bar. 5

III.
Turning to Lipscomb’s arguments, we conclude that the revocation
judgments should be vacated because his underlying sentence was vacated.
We therefore do not reach Lipscomb’s merits-based contention that the dis-
trict court made an error of “constitutional magnitude.”
Because much of the legal territory involved is unexplored, and
because of some mutual confusion between the parties regarding the nature
of their arguments, we briefly explain and clarify each side’s contentions.
Lipscomb makes a creative and apparently novel argument that his
revocation sentences should be vacated: A term of SR “commences on the
day the person is released from imprisonment . . . .” 18 U.S.C. § 3624(e).
Because Lipscomb is currently serving a twenty-year sentence, he has not
been released from prison. As a result, contrary to appearances, his term of
SR did not begin at the conclusion of his ten-year sentence. The original
revocations are therefore nullities because they purported to revoke some-
thing that had not even started. Lipscomb also avers that the revocation judg-
ments lack legal force because the reinstated sentence caused their “loss,”

5
Cf. U.S. Bancorp, 513 U.S. at 21 (“If a judgment has become moot [while awaiting
review], this Court may not consider its merits, but may make such disposition of the whole
case as justice may require.” (alteration in original) (quoting Walling v. James V. Reuter,
Co., 321 U.S. 671, 677 (1944))).

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i.e., they are inconsistent with the reinstated sentence. At a minimum, Lips-
comb asks the court to clarify that the revocation judgments were superseded
by the vacatur of the reduced sentence.
The government appears to have interpreted the thrust of Lipscomb’s
contention differently, characterizing it as a retroactive attack on the district
court’s subject matter jurisdiction over the revocation judgments. 6 The
government does not offer a direct argument against Lipscomb’s theory that
the revocation judgments should be vacated because the reinstitution of his
original sentence has superseded them. The government also concedes that
the revocation judgments currently have no legal effect.
Cutting through any imprecision, ambiguity, or lack of clarity, we
understand the core of Lipscomb’s contention to be that the vacatur of his
reduced sentence rendered the revocation judgments void. 7
We agree and hold that the vacatur of Lipscomb’s reduced sentence
requires the vacatur of the revocation judgments. Because his revocation
judgments flow from—and indeed are part of—his underlying sentence,

6
The confusion is understandable given some ambiguous statements in Lips-
comb’s brief. For example, he asserts, “The district court . . . had no power to revoke his
term of [SR],” and he notes that “[t]his Court reviews whether a district court has
jurisdiction to revoke [SR] de novo.” But he maintains elsewhere that his argument is not
jurisdictional: “There is no need to re-cast this substantive statutory argument in terms of
‘subject matter jurisdiction’ that ‘comes and goes.’”
At this point, the parties—and we—agree that the district court had subject-matter
jurisdiction over the litigation concerning the SR.
7
We therefore pretermit discussion of Lipscomb’s chronological sub-argument
that he never started his term of SR given that his original sentence was reinstated. Instead,
vacatur is appropriate because, as Lipscomb also contends, the government’s “success” in
getting the original sentence reinstated also resulted in “the loss of” the “two revocation
judgments that are inconsistent with that reinstated sentence.”

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vacatur of the latter entails vacatur of the former. 8
In the absence of express guidance from any binding authority, we
reach our result by considering both the statutory framework around SR and
caselaw parsing revocation judgments.
First, the statutory context. When imposing a sentence of imprison-
ment, a court generally may also include SR after imprisonment. 18 U.S.C.
§ 3583(a). The term of SR is not, however, a separate sentence: It is “a part
of the sentence” to the term of imprisonment. Id.
Courts also have broad discretion in imposing conditions of SR. See
id. § 3583(d). When a defendant on SR violates those conditions and a court
so finds by a preponderance of the evidence, the court may revoke the term
of SR. See id. § 3583(e)(3). Upon revocation, the court can require the defen-
dant to serve “in prison all or part of the term of [SR] authorized by statute”
for the offense that resulted in the term of SR release “without credit for time
previously served on postrelease supervision.” Id. Revocation judgments
therefore alter the terms of SR, which are themselves part of the underlying
sentence.
Precedent similarly views post-revocation penalties as part of the

8
Our judgment there would not be an instance of Munsingwear vacatur even if the
case were moot, contra the parties’ suggestions. When an appeal becomes moot through
happenstance or the action of the party that prevailed in the court below, the reviewing
court will sometimes vacate the judgment being appealed. See United States v. Munsing-
wear, Inc., 340 U.S. 36, 39–40 (1950); U.S. Bancorp, 513 U.S. at 23–25. Vacatur in such
circumstances “clears the path for future relitigation of the issues” and prevents an un-
reviewable judgment from “spawning any legal consequences,” such as claim preclusion.
Munsingwear, 340 U.S. at 40–41.
Vacatur is appropriate in this case not because of the bare fact that the revocation
judgments are now (arguendo) superseded or moot. Instead, it is appropriate given that
vacatur of Lipscomb’s reduced sentence perforce voided those judgments.

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underlying sentence. The Supreme Court most clearly explained the rela-
tionship between a revocation judgment and its underlying sentence in John-
son v. United States, 529 U.S. 694, 698–99 (2000), which involved a constitu-
tional ex post facto challenge after the 1994 addition of § 3583(h) to the SR
statute. 9
Johnson rejected the theory that a revocation judgment “imposes pun-
ishment for defendants’ new offenses for violating the conditions of their
[SR].” Id. at 700 (quoting United States v. Page, 131 F.3d 1173, 1176 (6th Cir.
1997), abrogated by Johnson, 529 U.S. 694). The rationale was that such a
theory generated “serious constitutional questions.” Id. 10
To circumvent constitutional problems, Johnson held that “postrevo-
cation penalties relate to the original offense.” Id. at 701. Accordingly,
courts must view “postrevocation sanctions as part of the penalty for the
initial offense.” Id. at 700.
The Court recently reaffirmed Johnson’s reasoning in United States v.
Haymond, 139 S. Ct. 2369 (2019). Although the Court failed to produce a
majority opinion, Justice Gorsuch’s plurality opinion and Justice Breyer’s
controlling concurrence 11 agreed that post-revocation penalties are part of

9
That subsection expressly granted courts the authority to impose a new term of
SR upon revocation of an earlier term of SR. Before the amendment, some circuits had
held that courts possessed that same authority under § 3583(e)(3).
10
For example, double jeopardy. If the conduct that violated a condition of SR was
also criminal, and if post-revocation sanctions punished that offense independently from
the underlying offense, then there could be two prosecutions for the same conduct: The
post-revocation hearing and the separate prosecution for that criminal conduct. See John-
son, 529 U.S. at 700–01.
11
Justice Breyer’s concurrence is the holding of the Court under the Marks rule:
“When a fragmented Court decides a case and no single rationale explaining the result
enjoys the assent of five Justices, ‘the holding of the Court may be viewed as that position
taken by those Members who concurred in the judgments on the narrowest grounds.’”

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the underlying penalty.
Justice Breyer’s concurrence noted that a revocation judgment “is
typically understood as ‘part of the penalty for the initial offense.’” Id.
at 2386 (Breyer, J., concurring) (quoting Johnson, 529 U.S. at 700). Likewise,
the plurality stated that SR “constitutes a part of the final sentence for [the
defendant’s] crime” regardless of whether it is later “revoked or sustained.”
Id. at 2380 (plurality opinion) (citing Johnson, 529 U.S. at 700). Thus, “when
a defendant is penalized for violating the terms of his [SR], what the court is
really doing is adjusting the defendant’s sentence for his original crime.” Id.
at 2380 n.5.
The statutory framework and applicable precedent indicate that vaca-
tur is warranted here. Lipscomb’s revocation judgments were part of his ten-
year sentence. That sentence was vacated. See Lipscomb, 2022 WL 327472,
at *2. The revocation judgments are therefore legally void and should be
vacated as well.
Lipscomb’s revocation judgments are therefore VACATED in con-
sideration of our earlier vacatur of his ten-year sentence. To avoid the un-
necessary inconvenience of a remand, we hereby RENDER judgment
accordingly.

Garland v. Roy, 615 F.3d 391, 399 (5th Cir. 2010) (quoting Marks v. United States, 430 U.S.
188, 193 (1977)). Because Justice Breyer “provided the ‘narrowest grounds’ . . . his con-
currence represents ‘the holding of the Court.’” United States v. Garner, 969 F.3d 550,
552 (5th Cir. 2020) (quoting Marks, 430 U.S. at 193), as revised (Aug. 14, 2020); see also
United States v. Badgett, 957 F.3d 536, 540 (5th Cir. 2020) (“Because only three [Justices]
joined Justice Gorsuch’s plurality opinion, however, Justice Breyer’s narrower concur-
rence controls.” (citing Marks, 430 U.S. at 193)).

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