F I L E D
United States Court of Appeals
Tenth Circuit
PUBLISH
August 7, 2007
UNITED STATES CO URT O F APPEALS Elisabeth A. Shumaker
Clerk of Court
TENTH CIRCUIT
U N ITED STA TES O F A M ER ICA,
Plaintiff-Appellee,
v. No. 06-1128
FED EL V ERA-FLO RES,
Defendant-Appellant.
A PPE AL FR OM T HE UNITED STATES DISTRICT COURT
FOR T HE DISTRICT OF COLORADO
(D .C . N O. 05-C R-465-M SK )
Vicki M andell-King, Assistant Federal Public Defender (Raymond P. M oore,
Federal Public Defender, with her on the briefs), Denver, Colorado, for
Defendant-Appellant.
James C. M urphy, Assistant United States Attorney (Troy A. Eid, United States
Attorney, with him on the brief), Denver, Colorado, for Plaintiff-Appellee.
Before M U RPH Y, B AL DOC K, and HO LM ES, Circuit Judges.
M U RPH Y, Circuit Judge.
I. Introduction
Defendant-Appellant Fedel Vera-Flores pleaded guilty to one count of
possession of a firearm by an illegal alien, in violation of 18 U.S.C.
§ 922(g)(5)(A). He received a sentence of twelve months and one day, to be
followed by three years’ supervised release. On appeal, Vera-Flores alleges the
United States breached its obligation under the plea agreement not to oppose a
below-Guideline sentence. He also challenges the sentence imposed by the
district court.
During the pendency of V era-Flores’ appeal, this court learned V era-Flores,
a citizen of M exico who was in the United States illegally at the time of his
arrest, had served his term of imprisonment and been deported. Because this
court determines V era-Flores’ removal from the United States moots his appeal,
we do not have jurisdiction to consider the merits of this appeal.
II. Background
Vera-Flores claims he entered the United States illegally in June 2005 to
work and visit his son and grandson in G rand Junction, Colorado. Vera-Flores’
arrest resulted from an October 14, 2005, Drug Enforcement Agency search of his
son’s home in connection with the son’s suspected illegal drug activity. 1 During
1
It is undisputed that the suspected illegal drug activity did not involve or
implicate Vera-Flores.
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the search, federal agents discovered a semi-automatic handgun in the bedroom
occupied by Vera-Flores.
Vera-Flores was apprehended by police officers during his evening drive
home from work on October 14 and w aived his M iranda rights. W hen questioned
about the handgun, Vera-Flores admitted he had purchased the gun during his stay
in Grand Junction. He admitted he knew he could not legally purchase or register
a gun and also acknowledged he had been aware of the risk that the gun was
stolen. Three days after Vera-Flores’ arrest, the Bureau of Immigration and
Customs Enforcement filed a detainer for removal proceedings.
Vera-Flores pleaded guilty to one count of possession of a firearm by an
illegal alien in violation of 18 U.S.C. § 922(g)(5)(A). In exchange for Vera-
Flores’ guilty plea, the United States agreed to a two-point reduction under the
advisory Sentencing Guidelines for acceptance of responsibility and a one-point
reduction for timely notifying the government. The United States further agreed
not to oppose V era-Flores’ request for an outside-the-heartland downward
departure under the Guidelines or his request for a below-G uidelines sentence.
At sentencing, Vera-Flores requested a downward departure based on
aberrant behavior, pursuant to U.S.S.G. § 5K2.20, and for conduct outside the
heartland of the Guidelines, pursuant to U .S.S.G. § 5K2.0. Vera-Flores also
asked the district court to consider a sentence below the Guidelines based on his
personal history and characteristics and the need to impose a sentence not greater
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than necessary to accomplish the goals of 18 U.S.C. § 922(g)(5)(A). W hen asked
for its position on the requested sentencing departures, the United States said it
did not object. W hen asked whether it “conced[ed]” a non-Guidelines sentence
would be appropriate, however, the government said it would “not concede that.”
The court interpreted the government’s statement as “not oppos[ing] a downward
departure under the guidelines but oppos[ing] imposition of a non-guidelines
sentence.” The court further stated its belief that there is a rebuttable
presumption that a Guidelines sentence is reasonable. It placed on Vera-Flores
the burden of rebutting the propriety of a Guidelines sentence.
In determining Vera-Flores’ sentence, the court declined to accept either of
V era-Flores’ proffered grounds for departure. It also declined to impose a below -
Guidelines sentence. Based on Vera-Flores’ total offense level of thirteen and his
lack of criminal history points, the court calculated a Guidelines sentence of
twelve to eighteen months’ imprisonment. The court sentenced Vera-Flores to
twelve months, followed by three years’ supervised release. Vera-Flores
subsequently requested, and the court imposed, a sentence of twelve months and
one day to qualify Vera-Flores for good-time credit.
Vera-Flores filed a timely notice of appeal. On appeal, Vera-Flores asserts
the U nited States breached the plea agreement by failing to concede that a below -
Guidelines sentence would have been appropriate and by failing to correct the
district court’s misapprehension that the United States opposed a below-
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Guidelines sentence. Vera-Flores further alleges the district court abused its
discretion by misinterpreting the prerequisites for the aberrant behavior departure
and by declining to apply the outside-the-heartland departure. Finally, Vera-
Flores challenges the substantive reasonableness of his sentence and the manner
in which the district court arrived at its decision to impose a within-Guidelines
sentence.
Vera-Flores completed his term of incarceration during the pendency of this
appeal and was removed from the United States by the Bureau of Immigration and
Customs Enforcement. This court issued an order to show cause w hy the case
should not be dismissed as moot, either because Vera-Flores’ deportation
rendered the appeal moot or because of the lack of a concrete possibility the
district court would impose a lesser term of supervised release on remand.
In his briefing on the mootness issue, Vera-Flores argues the appeal is not
moot because any errors in sentencing could be corrected on remand by a reduced
term of supervised release. The United States, in response, acknowledges that a
favorable appellate decision has the potential to yield a reduced term of
supervised release, but argues that the record, which is devoid of any discussion
about the appropriate term of supervised release, does not suggest any “concrete
possibility” that a lesser supervised release term would be imposed on remand.
The United States also argues that Vera-Flores has not met the burden of
demonstrating that sufficient collateral consequences would arise from a
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favorable decision because his deportation has rendered his supervised release
term a practical nullity. In reply, Vera-Flores contends the government is only
speculating as to whether there is a concrete possibility of a reduced term of
supervised release on remand and asserts that, because he does not face a lifetime
bar to lawful reentry into the United States, his situation is distinguishable from
that of defendants whose sentencing appeals have been held moot by other courts.
III. Discussion
Before addressing the merits of an appeal, a court must be satisfied that it
has jurisdiction to entertain the appeal. Article III of the United States
Constitution imposes a strict requirement that federal court jurisdiction extends
only to actual cases and controversies. U.S. Const. art. III, § 2, cl. 1. Article III
requires a party seeking relief to have “suffered, or be threatened with, an actual
injury traceable to the [appellee] and likely to be redressed by a favorable judicial
decision [by the appeals court].” United States v. M eyers, 200 F.3d 715, 718
(10th Cir. 2000) (quotation omitted) (alteration in original). W here judicial relief
will not remedy the appellant’s injury, “the appellant can no longer satisfy the
Article III case or controversy jurisdictional requirement and the appeal is moot.”
Id.
In this circuit, under ordinary circumstances, a defendant who has served
his term of imprisonment but is still serving a term of supervised release may
challenge his sentence if his unexpired term of supervised release could be
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reduced or eliminated by a favorable appellate ruling. United States v. Castro-
Rocha, 323 F.3d 846, 847 n.1 (10th Cir. 2003), abrogated on other grounds by
Lopez v. Gonzales, 127 S.Ct. 625 (2006). A defendant in this situation satisfies
the Article III case or controversy requirement because the defendant’s liberty is
affected by ongoing obligations to comply with supervised release conditions and
restrictions. See, e.g., United States v. Knights, 534 U.S. 112, 119 (2001)
(discussing limits of probationer’s liberty).
This case, however, presents a different situation. 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 M exico. W hile outside the
United States, Vera-Flores has no obligation to report to a probation officer and is
not under the supervision or control of the U nited States Probation Office. In
short, Vera-Flores’ liberty is in no way affected by any sentencing error allegedly
comm itted by the district court because Vera-Flores’ deportation has eliminated
all practical consequences associated with serving a term of supervised release. 2
2
Because Vera-Flores’ claim regarding the government’s breach of the plea
agreement relates solely to sentencing, this court construes his claim as a
challenge to the length of his sentence rather than to his conviction. Vera-Flores
nowhere disputes the voluntary, knowing, and intelligent nature of his plea or
asserts the plea itself is invalid. Vera-Flores’ only challenge is to whether the
government was obligated to clarify that it did not oppose the imposition of a
below-G uidelines sentence. Furthermore, although Vera-Flores attempts in his
reply brief on the mootness issue to characterize his plea bargain claim as a
challenge to his conviction, he admits that the appropriate remedy would be a
reduction in his term of supervised release rather than the invalidation of the plea
(continued...)
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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. See Spencer v. Kemna, 523
U.S. 1, 7 (1998).
Furthermore, as in the parole-revocation context, this court cannot presume
that collateral consequences arise from any alleged sentencing errors. See
Spencer, 523 U.S. at 14 (declining to presume collateral consequences flow from
allegedly improper parole revocation); M eyers, 200 F.3d at 722 (holding
defendant failed to show sufficient collateral consequences arising from
revocation of supervised release and resulting reimprisonment after term of
reimprisonment had been completed). W here direct injury is absent and there is
no presumption that collateral consequences arise from erroneous district court
action, the appellant bears the burden of demonstrating sufficient collateral
consequences to avoid dismissal for mootness. Spencer, 523 U.S. at 14–16;
M eyers, 200 F.3d at 718. Vera-Flores has not met this burden. Vera-Flores
2
(...continued)
agreement. Under different circumstances, where, for example, the voluntariness
of the plea itself is at issue, the defendant’s challenge would properly be
considered a challenge to the defendant’s conviction and the mootness analysis
would likely be different, even in a situation where the defendant has been
deported. See Spencer v. Kemna, 523 U.S. 1, 12 (1998) (presuming continuing
collateral consequences of a conviction sufficient to meet the Article III case or
controversy requirement even after a defendant has completed his term of
imprisonment).
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asserts that the possibility he could lawfully reenter the United States at some
future time distinguishes his situation from those of defendant aliens who are
barred for life from lawful reentry into the United States and whose sentencing
appeals have been held moot. 3 See, e.g., United States v. DeLeon, 444 F.3d 41,
55–56 (1st Cir. 2006); United States v. Hernandez-Baide, 146 F. App’x 302, 304
(10th Cir. 2005) (unpublished); United States v. M ercurris, 192 F.3d 290, 294 (2d
Cir. 1999). In support of this contention, Vera-Flores cites the court-imposed
condition of his supervised release which requires him, in the event he law fully
reenters the United States during his three-year period of supervised release, to
report to the nearest United States probation office within seventy-two hours of
reentry. Although Vera-Flores does not elaborate upon the significance of this
condition of his supervision, we construe the reference as an argument that, were
Vera-Flores to obtain the Attorney General’s permission to apply for lawful
reentry during the pendency of his three-year term of supervised release and were
he actually admitted during that time period, he would be forced to serve out the
remainder of his supervised release term under the supervision of the United
States Probation Office. Because this hypothetical scenario is, at best, “remote
3
Because he initially entered the country illegally and was removed upon
completion of his term of imprisonment, Vera-Flores is subject to a ten-year bar
from the date of his removal before he can apply for lawful reentry into the
United States, unless he applies for and receives permission from the Attorney
General to apply for readmission earlier. See 8 U.S.C. § 1182(a)(9)(A)(ii)(I) &
(iii).
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and unlikely to occur[,]” such a speculative collateral consequence is insufficient
to save Vera-Flores’ appeal from mootness. 4 Spencer, 523 U.S. at 8; see
generally Richard D . Steel, Steel on Immigration Law § 11:35 (2d ed. 2006),
available at W L STEEL § 11:35 (discussing factors A ttorney General considers in
exercising discretion to grant permission for early application for reentry, as well
as procedure and fee for filing request for permission to apply).
IV. Conclusion
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 collateral consequences arising from any alleged errors the
government or the district court made during Vera-Flores’ sentencing proceeding,
this court concludes V era-Flores’ removal has rendered his appeal moot. This
appeal is, therefore, DISM ISSED.
4
Because this court concludes V era-Flores has failed to demonstrate
sufficient collateral consequences to avoid dismissal, we do not reach the
argument recently relied upon by the Fifth Circuit in United States v. Rosenbaum -
Alanis, 483 F.3d 381, 383 (5th Cir. 2007) and advanced by the U nited States here
as an alternative justification for a mootness dismissal. In Rosenbaum-Alanis, the
court held the deported defendant’s inability to appear in court for resentencing
pursuant to Federal Rule of Criminal Procedure 43 precluded the court from
affording relief. Id.
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