UNITED STATES оf America, Plaintiff-Appellee, v. John PEROTTI, Defendant-Appellant.
No. 16-3556
United States Court of Appeals, Sixth Circuit.
Filed July 24, 2017
322
Justin Seabury Gould, Assistant U.S. Attorney, Office of the U.S. Attorney, Cleveland, OH, for Plaintiff-Appellee
Kevin Michael Schad, Federal Public Defender‘s Office, Cincinnati, OH, for Defendant-Appellant
John W. Perotti, Pro Se
BEFORE: SILER, CLAY, and McKEAGUE, Circuit Judges.
SILER, Circuit Judge.
After Johnson v. United States, — U.S. —, 135 S.Ct. 2551, 192 L.Ed.2d 569 (2015), was decided, John Perotti was permitted to file a successive habeas corpus pеtition and had his sentence corrected as one of his prior convictions no longer qualified as a predicate felony under the Armed Career Criminal Act (ACCA). At thе government‘s request, Perotti was resentenced to time served and two years of supervised release. At the time of Perotti‘s release from federal custody, hе had served more time than the newly-applicable statutory maximum for his underlying conviction. Perotti appeals his sentence since his actual time served exceeded the
FACTUAL AND PROCEDURAL BACKGROUND
Perotti was found guilty by a jury of being a felon in possession of ammunition in violation of
On direct appeal, Perotti challenged whether his 1982 conviction for Ohio aggravated robbery, in violation of then
In 2015, the Supreme Court held that the ACCA‘s residual clause,
In adjudicating Perotti‘s § 2255 petition, the district court concluded that he no longer qualified for an enhanced sentence under the ACCA. This meant that his statutory maximum sentence reverted to the ten years applicable to his underlying conviction. The district court, at the government‘s request, imposed a sentence of time served and two years of supervised release and ordered Perotti released from federal custody. At the time of his release, Perotti had served nearly twelve years in federal custody. He was then taken into state custody where he remains.
STANDARD OF REVIEW
Questions of mootness and ripeness are jurisdictional and are reviewed de novo. Lewis v. Cont‘l Bank Corp., 494 U.S. 472, 477, 110 S.Ct. 1249, 108 L.Ed.2d 400 (1990) (mootness); Ammex, Inc. v. Cox, 351 F.3d 697, 706 (6th Cir. 2003) (ripeness).
DISCUSSION
For us to have jurisdiction, a live case оr controversy must exist on appeal. Mootness is “the doctrine of standing set in a time frame.” Arizonans for Official English v. Arizona, 520 U.S. 43, 68 n.22, 117 S.Ct. 1055, 137 L.Ed.2d 170 (1997) (quoting United States Parole Comm‘n v. Geraghty, 445 U.S. 388, 397, 100 S.Ct. 1202, 63 L.Ed.2d 479 (1980)). The existence of an Article III case or controversy at the distriсt court is insufficient to confer appellate jurisdiction—the case must still be live during appellate proceedings. We do not issue advisory opinions. Georgе Fischer Foundry Sys., Inc. v. Adolph H. Hottinger Maschinenbau GmbH, 55 F.3d 1206, 1210 (6th Cir. 1995). The government asserts that Perotti‘s challenge to his sentence was mooted when he was released from federal custody. If Perotti was challenging his conviction, then that would satisfy the case or controversy requirement as continuing adverse consequences are presumеd. Spencer v. Kemna, 523 U.S. 1, 7-8, 118 S.Ct. 978, 140 L.Ed.2d 43 (1998). Perotti is not challenging his conviction but is instead challenging only the part of his sentence he has already completed, so this presumption does not apрly and he must point to some other continuing adverse consequence. Id. at 8, 118 S.Ct. 978. In considering whether Perotti has pointed to such a harm, we note that an increasеd sentence
The first adverse consequence Perotti clаims confers appellate jurisdiction is the potential that he will lose the opportunity to have his over-time served credited to him should his supervised release be revoked. This harm is too uncertain to be cognizable. It could only arise if Perotti violates the terms of his federal supervised release, something we cannot assume will occur and do not wish to encourage. There would also need to be a revocation hearing, a finding of a violation, and the imposition of a sеntence. Because none of those events has occurred, appellate jurisdiction does not exist on the basis of this alleged harm.
The second cоnsequence that Perotti claims allows appellate review is that without resentencing he will be unable to have his time spent in custody properly considered by the district court should it consider shortening the two-year period of federal supervised release it imposed at resentencing. The Supreme Court has made сlear that excessive time served in prison does not automatically reduce a defendant‘s period of supervised release. See United States v. Johnson, 529 U.S. 53, 60, 120 S.Ct. 1114, 146 L.Ed.2d 39 (2000) (“The statute, by its own necessary operation, does not reduce the length of a supervised release term by reason of excess time served in prison.“). But the Court also recоgnized that “equitable considerations of great weight exist when an individual is incarcerated beyond the proper expiration of his prison term” and that under
The third alleged adverse consequence that Perotti asserts confers appellate jurisdiction is that he will be unable to have his case accurately considered by the Ohio Adult Parole Authority (OAPA). The state parole violation for which Perotti is currently incarcerated derives from the same conduct underlying his federal conviction, and for Perotti this underscores the necessity of correcting his federal sentence. Becausе the OAPA must consider a myriad of factors (none of which is dispositive) in reaching its determinations,
For each of Perotti‘s claims, it is also uncertain thаt a favorable judicial decree
APPEAL DISMISSED.