Second Circuit Creates Split Re Whether Appellate Challenge to Sentencing Guideline Calculation Becomes Moot Once Appellant Completes Prison Sentence

Per United States v. Blackburn, - - - F.3d - - - (2d Cir. July 26, 2006):

Blackburn...[argued] on appeal that the district court erred in imposing a four-level sentencing enhancement pursuant to United States Sentencing Guidelines ("U.S.S.G" or "Guidelines") § 2K2.1(b)(5). Because Blackburn has completed his prison sentence and we are convinced that a favorable decision on appeal would yield no "effectual relief," United States v. Quattrone, 402 F.3d 304, 308 (2d Cir. 2005), we conclude that the case is moot and dismiss it for lack of jurisdiction without reaching the merits of Blackburn’s claim.


Several of our sister circuits have held that a challenge to a sentence by a criminal defendant who has completed his prison term but remains subject to supervised release is not moot because the possibility of the district court’s reducing the term of supervised release on remand gives the defendant-appellant a continuing stake in the outcome. See, e.g., United States v. Larson, 417 F.3d 741, 748 (7th Cir. 2005); United States v. Castro-Rocha, 323 F.3d 846, 847-48 (10th Cir. 2003); United States v. McCoy, 313 F.3d 561, 564 (D.C. Cir. 2002) (en banc); United States v. Verdin, 243 F.3d 1174, 1178-79 (9th Cir. 2000). The record before us, however, reveals that the possibility of the district court’s imposing a reduced term of supervised release on remand is so remote and speculative that any decision on the merits of Blackburn’s claim would amount to a "declar[ation of] principles or rules of law which cannot affect the matter in issue in the case before [us]," Mills v. Green, 159 U.S. 651, 653 (1895), and would thus run afoul of Article III’s restriction of our power.


Under the post-Booker sentencing regime, district courts have a "continuing duty to consider [the Guidelines], along with the other factors listed in [18 U.S.C. § ] 3553(a)," United States v. Crosby, 397 F.3d 103, 111 (2d Cir. 2005) (internal quotation marks omitted). The Courts of Appeals likewise have a continuing duty to review the district courts’ application of sentencing enhancements. See United States v. Argudelo, 414 F.3d 345, 347 (2d Cir. 2005). The sentencing issue raised here is an important one, over which there is a split of authority among the circuits.

The importance of the issue, however, and the temptation to decide it can have no bearing on our assessment of its justiciability.


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