United States v. Wesley Blackburn

III. CONCLUSION could have relied creditor potential in PrimeRx position Diversified’s Med above, we For the reasons stated con- a loan. Be- whether to extend deciding mandatory clude that section 510’s subor- concept “only equity cushion cause from the “arising pur- dination of claims judgment concern- the broader part of one security chase or sale of of the [a debtor]” allocation,” Enron, B.R. In re risk ing requires subordination Rombro’s claim. determined because we have at judgment We therefore AffiRM within the situation fits that Rombro’s district court. subordination, risk-allocation rationale by the fact ultimately troubled are we rationale equity-cushion Ninth Like the Third and here.

promoted deciding questions, we similar

Circuits that Rombro’s claim holding

ground in the risk-alloca- subordinated

should be rationale, integral to which is “more

tion 510(b).” Id. analysis of section any policy America, UNITED STATES (footnote omitted); generally see id. at 166 Appellee, (noting it is “unclear which n. Kripke regarded as rationale Slain and concepts if these can even be

superior, Wesley BLACKBURN, Defendant- severed,” “Congress and neatly Appellant. the issue of courts have elevated Docket No. 05-1875-cr. to the reliance] than creditor [rather

risk fore.”). Appeals, United States Court Second Circuit. conclusion, interpret section

In we 510(b) broadly to require subordination Argued: Dec. 2005. however, so, doing the claim at issue. July Decided: acknowledge the outer boundaries purpose. “Nothing text and the statute’s require the subordi

in our rationale would because the identi simply

nation of a claim

ty happens claimant to be share of the bargain completed a

holder one who [or shareholder], where the claim

become pur relationship causal

lacks subordi or sale of stock when

chase further nating would not the elaim[] ” 510(b).... In re

policies underlying 144, n. 2. In this

Telegroup, however,

case, binding parties to turn a

agreement between interest, it is reason equity

debt into an inis line

ably that Rombro’s claim clear policy underlying section concerns

510(b). District

States Court for the Western Dis York, Skretny, trict of New principally him imprisonment 37 months years followed three supervised release. argument appeal Blackburn’s sole court erred imposing a pursu four-level Sentencing ant to States United (“U.S.S.G.” “Guidelines”) 2K2.1(b)(5). Because Blackburn has pris on sentence and we are convinced that a appeal yield favorable decision on relief,” Quat “effectual trone, Cir.2005), conclude moot case is and dismiss jurisdiction it for lack without reaching merits Blackburn’s claim.

BACKGROUND underlying The facts Blackburn’s convic- tion in dispute. and sentence are not On 16, 2003, March Blackburn and another burglarized man an apartment in North Tonawanda, York, New and stole three firearms manufactured outside the state of Hoover, New Timothy York. Blackburn and his accomplice W. Assistant Federal Defender, Federal Public later sold the party. Defender’s Of- firearms to third fice, York, Western District of New Buffa- Blackburn, who had a previous felony lo, NY, Defendant-Appellant. State, conviction from New York Jr., Kennedy,

James P. Assistant United charged burglary, state court with crim- Attorney, States Western District of New firearm, inal sale grand larceny, petit (Kathleen York, Buffalo, NY, M. Mehltret- larceny, and criminal possession of a weap- ter, Acting Attorney United States for the on. These state charges were dismissed York, Buffalo, Western District New prosecution after the federal was institut- NY, counsel), for Appellee. ed. Blackburn waived indictment plead- MESKILL, SOTOMAYOR, Before guilty, pursuant ed plea agree- to a written KAPLAN, Judges, Circuit District ment with the government, federal to a Judge1. one-count information charging him with MESKILL, Judge. Circuit being felon in possession of firearms in Defendant-appellant Wesley Blackburn violation of 18 922(g)(1). U.S.C. In the challenges judgment plea the United agreement, Blackburn admitted all York, Kaplan, A. Honorable Lewis sitting by designation. New Judge District for the Southern District of the felon- DISCUSSION necessary establish the facts (the charge offense convic- in-possession III, Article of the Section tion) uncharged as the offenses as well judi limits the Constitution federal fire- and sale stolen burglary and “controversies.” power cial “cases” Const, arms. II, § art. 2. This “case-or- U.S. controversy underpins limitation ... both Depart- Probation States The United jurispru standing and our mootness our Report a prepared ment Pre-Sentence Friends the Earth v. Laidlaw dence.” of (PSR), recommending sentencing range a 167, Servs., 180, 528 120 Envtl. S.Ct. 57 of 46 to months under the Guidelines (2000). 693,145 610 L.Ed.2d in- imprisonment. The PSR’s calculation standing satisfy Article Ill’s [T]o enhancements, cluded, among a four- other (l)[he] must quirements, plaintiff a show the level level increase over base offense “injury an fact” that is has suffered 2K2.1(b)(5) § to pursuant U.S.S.G. (a) (b) particularized concrete “in connection possessed the were firearms imminent, conjectural actual felony other with another offense”—that (2) hypothetical; injury fairly the burgla- being the admitted felony offense of challenged traceable to action ry. (3) defendant; and it as likely, op- merely speculative, that posed to objected application to of Blackburn injury be redressed a favorable will 2K2.1(b)(5) also enhancement. He decision. judge depart asked the to downward History, 180-81, Lujan his from Cat- respect (citing to Criminal at 693 Id. S.Ct. III, 555, egory Category ground Wildlife, to on 560- TV v. 504 U.S. Defenders (1992)). 2130, Category overrepresented his IV S.Ct. history. party seeks criminal is the burden of who “[I]t favor, jurisdiction in his the exercise found demonstrating to allege facts applied, judicial party to invoke proper he is impris- non-Guidelines Spencer v. dispute.” resolution of onment 37 months—9 months below Kemna, 1, 11, 523 U.S. 46 to 57 range of indicated Guidelines (1998) (internal quotation L.Ed.2d 43 imposed a The court further months. omitted). marks release, three-year term of satisfy the case-or- “In order to special which included both standard must, at requirement, party controversy conditions. an actual stages litigation, have all timely appealed from his sen- Blackburn injury likely which is redressed government argument At oral judicial tence. decision.” favorable United Mercurris, was scheduled informed us that Blackburn Cir. 1999) (citing Spencer, been released from federal 978). rule, Thus, “if general con- an days previously. two Later as a had, fact, pro during the course of Blackburn been occurs firmed that event impos appeal ‘that makes custody serving ceedings his or on from and was released effectual grant any court to By for the term of sible three-year Court, prevailing party,’ to a whatever parties submitted relief order of Quattrone, must dismiss case.” Blackburn’s briefing further as whether Scientology (quoting Church custody appeal. mooted release States, every There indication the record (1992) (further 447, 121 L.Ed.2d 313 inter- court would not reduce omitted)). quotation nal marks and citation term of release on contrary, remand. Much to the the tran- circuits Several our sister script reveals the court’s de- challenge held that a to a sentence sign keep eye as close on Blackburn criminal defendant who has long possible possible. Judge as as subject super term but remains Skretny stated that he had “search- pos vised release is not moot because the ing something to latch on to tells me sibility reducing the district court’s maybe sentence outside remand gives defendant-appellant continuing range a the appropriate Guideline sen- See, e.g., stake in the outcome. case,” tence in this but repeatedly ex- Larson, (7th States v. 417 F.3d pressed his concern about Blackburn’s Cir.2005); Castro-Rocha, United States v. help and turn constant failures to himself (10th Cir.2003); 323 F.3d 847-48 n. 1 given previous oppor- his life around when McCoy, United States v. asked, do so. judge tunities to The “What (D.C.Cir.2002) (en banc); United States v. makes it different now?”. (9th Verdin, Cir. replied prior Blackburn that his bad acts 2000).2 us, however, The record before young, stupid occurred while he was possibility reveals that the behalf, On drinking. Blackburn’s at- imposing a of super reduced term torney requested that Blackburn be sen- vised release on remand is so remote and particular tenced to a program treatment speculative that decision on the merits though even participation pro- in such a of Blackburn’s claim would amount to a gram not yield “sentencing would principles or rules of of] law “declaration Asking chance,” break.” a for “second cannot affect the matter issue attorney pledged Blackburn’s that Black- [us],” Green, the case before Mills v. 651, 653, burn’s actions com- would demonstrate his U.S. 16 S.Ct. 40 L.Ed. 293 (1895), to and would thus run mitment turn life around. afoul Article Most power. Ill’s restriction significantly, of our pitch for a non- sure, "equitable 2. To always considerations of Blackburn’s are not moot.” It great weight true, however, exist when an individual is incar- equally challenges that such as beyond proper expiration cerated of his always Blackburn's are not not moot. As a term,” Johnson, empowered decide concrete cases 53, 60, principles, and not abstract we decide wheth- (2000), or has endured unwarranted condi- justiciable er the case is on the record before confinement, Apker, tions see Levine v. case, explain, us. In this as we are about to F.3d 71 Thus we assume expression the district court's clear of a de- case, typical just that in the as in those cited sign keep eye as close an on Blackburn as dissent, body in the text appel- an possible long possible for as convinces us fairly likely late court enough could deem it so it is would that, if the merits issue were decided in favor actually reduce Blackburn’s term of defendant, the district court would use vised release that a decision on the merits modify discretion on remand to advisory opinion. would amount a typical release. In distinguish district court’s statements thus case, judge say quite not does as much this case from others which the record Judge Skretny about release as did provide insight does not vivid such into the here. Accordingly, court’s concerns. observe, then, right quite The dissent is holding quite in this case narrow. agree that "we ... challenges such as reduce expressly included sentence Guidelines change to accommodate release: lease rigorous period of term im- calculation he a second chance so He want doesn’t prisonment. want He doesn’t get probation. can this. he can skate on chance so second That is still more farfetched be- idea skate, I’m going to He’s not taken into already cause the court had to—the Court going sure the Court is possibility account significant impose to and will will have may not apply. enhancement him in ad- period on supervised release sentencing, At district court acknowl- So, you incarceration. dition among edged split there is a know, louder than words. speak actions applica- circuits that considered the bility factual pitch, made Blackburn similar Having such and that this circumstances Court has surprised could have been the issue. While the court did maximum term addressed imposed district court and cal- years. applied find the enhancement release —three range accordingly, culated the Guidelines requested Blackburn sentence —and imprisonment a term of nine at decreas- —aimed explain- range, months the indicated below increasing supervision ing prison time and that, factors, among ing “[t]here other to he actions see whether of Blackburn’s legal have been some close issues that promises.” on good would “make [his] addressed, I give to think needed be course, court, ultimately credited added). Al- you (emphasis credit ready for.”3 that he was Blackburn’s statements though stopped saying the court short imposed a term to turn his life around and impose it the same sentence would below the indicated imprisonment enhancement, its state- with without Still, Skretny range. Judge applica- indicates that the uncertain ment again expressed concern as Blackburn’s factored into bility of the enhancement was record, described what unfavorable track then, is, There sentence. even the court’s behavior he wanted see Blackburn’s suppose might that the court less reason and, special some accordingly, supervised release —to reduce the ex- supervised conditions of release —for have lim- calculations which the Guidelines completion program. ample, of G.E.D. 3583(c) relevance, see 18 U.S.C. ited —in warned, you help don’t judge “[i]f applicability correction as to the lack- yourself, you’ve is where enhancement. with ing past, you up in the ... foul [i]f conditions], [special respect to those the district argues Yet Blackburn everything that we talked I’ll remember his term willing to reduce might me on a you up about if come back before for “lost release to make (if repeated is, any) light of violation.” excess time time”—that Black- of its concern about over what the expression prison Blackburn served to without through to follow him burn’s commitment court would sentenced challenged and its tai- enhance- promised lifestyle changes application course, re- court could loring Of of the conditions of ment. Barresi, we this. progress, monitor Blackburn’s do See lease to (2d Cir.2004). But we court F.3d impossible find to believe belong- sentencing reveals that Blackburn’s only legal contested was 3. The issue other higher category ing in was all been Crim- Blackburn should have whether transcript question. History close Category III IV. The inal must conclude that it again extremely purpose design” statute’s would count unlikely that the as militating against exercise its another factor reduc- way, ing guid as it would be Blackburn’s term of supervised discretion lease, making Supreme ed the United States it more still that Court’s cautioning improper court would do so. treat choose to Id. imprisonment terms of re We should note that we means “interchangeable.” lease as United States wish to add to the burden of district Johnson, 58-59, judges fully to articulate their (2000). 1114, 146 L.Ed.2d In rejecting particular for imposing reasons sentences. petitioner’s argument that his term of See v. Bermingham, release commenced the date Rather, F.2d he should have been released from intend that our today decision evi should (but error) not, due to rather than his dence our attention to judges’ release, actual date of the Court observed explanations. careful judge When a has so objectives “[t]he thoroughly laid out his concerns as obvi would be unfulfilled time ate the need for a for any remand clarifica offset were to and reduce terms of super tion, disregard we will not his statements Congress vised super intended on the record and remand for imposition vised release to assist individuals their the same sentence. “What we know as community transition to Supervised life. men forget and women we must not ends, release fulfills rehabilitative distinct Roberson, judges.” United States v. from those served incarceration.” Id. (9th Cir.1990) (Aldisert, J., 59, 120 S.Ct. 1114. dissenting). Bermingham, 855 F.2d at Cf. (“Though While Johnson the 935 option likely leaves we think it the open, suggests it Judge nevertheless to re- District would have a nine- duce supervised Blackburn’s term of month sentence whether level 6 offense or cannot, lease as means of 4 offsetting pris- applied, offense level in light we on objectives record, time would disserve of reach that conclusion with it.”). Therefore, release.4 See id. sufficient confidence to act upon is, in light as it of the state- CONCLUSION above, ments recounted willing would be otherwise to exer- post-Booker Under the sentencing re- cise its discretion in way, gime, this Johnson’s district courts have a “continuing exposition of duty Guidelines], “[the release] to consider along [the Johnson, 53, reading 4. This proposition 529 U.S. 120 would have had (2000), S.Ct. is in no authority three-year no to do so had the term way opinion inconsistent with our in United been mandated statute. See id. at 674-75 Bairesi, States v. 361 F.3d 666 Johnson, 54-56, (citing 529 U.S. at we Barresi corrected the district court’s 1114). expressed opinion We no as to either "any erroneous statement reduction in (what advisability important or is more supervised-release Barressi's term could likelihood, case) of Johnson’s accomplished only by means of a Guidelines exposition divergent objectives of the of incar- departure.” 668. We considered release, and ceration aof court's only whether "the district court could have exercising appel- its discretion to reduce the reduced Barresi's solely lant's release term to com- two, years from three to as low as within the pensate having overlong for his served an Guidelines,” range specified by the and an- interchange- term as if the terms were question swered that in the affirmative. Id. at able. added). (emphasis 675 We cited Johnson for (citation omitted). lia, /., dissenting) Were [18 factors listed U.S.C. the other 3553(a),” Crosby, 397 issue today, we to reach the substantive ] Cir.2005) (internal (2d quota- authority overstep would bounds omitted). Ap- The marks Courts granted tion us the federal Constitution. continuing duty to Env’t, likewise have a peals Steel Co. v. Citizens a Better See application 83, 101-02, courts’ review 523 U.S. (1998) (“For sentencing enhancements. See United pro- L.Ed.2d 210 a court to Agudelo, meaning nounce constitu- Cir.2005). sentencing issue raised tionality of a when it state federal law one, which there important here over is, is jurisdiction by very has no do so authority among the circuits. split is a definition, vires.”); for a court act ultra (7 McCardle, Wall.) 506, parte Ex issue, however, importance (“Without (1868) juris- L.Ed. it can have no temptation to decide at all in proceed diction court cannot justicia- bearing our assessment power cause. is to de- Jurisdiction Earth, bility. Friends See exist, law, clare the and when it ceases to (“Because the re- only remaining to the court is function continuing of a case or contro- quirement Constitution, announcing dismissing that of the fact and versy from the derives inconvenient.”) (Sca- cause.”).5 ignored not be when Second, reasoning simple. We find difficult we have neither created "dic- 5. Our is pro- We opinion be so ta” nor Johnson." "misconstrue[d] to believe that our could acknowledged foundly explicitly repeatedly At the of mud- misunderstood. risk clear, briefly dying throughout opinion what we will we believe our power, distortions of unquestionably address few the dissent's would have the remand, position. our to reduce Blackburn's event Johnson, First, as we logic, as a matter of both law explained, "clearly option leaves this justiciability of the case's must assessment words, open.” no analysis. In other Johnson precede That substantive question: means on all fours with Blackburn. on one Is the threshold issue turns court, already explained We have how our deci- possibility that the district the event issue, way today inconsistent with sion of a remand on the merits point only we that the Barresi. At this note to exercise its discretion to reduce choose Barresi of the issue considered in supervised release so distinction Blackburn's term of un- (i.e., on remand district court could any whether likely that decision on the merits would non-mandatory supervised term of opinion? reduce advisory That is the amount an Guide- departing from the release without only question we consider or decide in our (i.e., lines) today we from the issue consider opinion. apologies We for our make so) this case would do "combing court in this threshold whether the the record” decide charge Barresi "we contrary, hope belies the dissent's that in question. we and be- On reading explicitly rejected of Johnson ad- practice that it our common to make lieve majority here.” Barresi we us vanced based on the records before and decisions not had no to and did discuss We clear not in abstraction. wish make reason portion our decision of Johnson that informs repeated be- that our reference to record analysis. Blackburn. Our in trays no covert substantive dis- Finally, "ignore[d] important we not senting colleague point asserting misses the in direct and collateral con- distinctions between the record reveals that that our attention to We have deliber- analysis. sequences of a conviction.” engaged error we in harmless are analysis ately needless refrained from we concerned ourselves with here What harmlessness, consequences doctrine because collateral but Con- fruitlessness. argu- a colorable has not advanced us that Blackburn as we are on the record before vinced any consequence attaches pre- collateral yield ment substantive decision could relief, prison, as having in to his served months vailing party we cannot no effectual (We do not opposed some term. proceed shorter do not further. SOTOMAYOR, Judge, offsetting pris- Circuit lease as means objectives on time would disserve the dissenting: supervised majority release.” The miscon- majority gleans the record Johnson, I strues and write on this issue this case the assurance I do majority’s not want the dicta court would have the same term create dis- improper suggestion to supervised regardless release wheth- trict courts. The Court’s statement applies er objectives super- Johnson “[t]he calculating Guidelines sen- vised release would be unfulfilled if excess record equivocal tence. The is more than prison time were to offset and reduce claims, however, majority ánd the Su- terms of release” was made preme ruling Court’s in United States v. the context of its conclusion that incarcera- Booker, tion are inter- (2005), applying L.Ed.2d cases changeable supervised-release where it have clear made that we should not mandatory.1 term is See 539 at 59- speculate to what as a district court only 123 S.Ct. 2142. Johnson stands in resentencing do except defendant in for proposition the limited very limited circumstances that are not release commences a defendant’s re- I present here. find no clear indication in lease from and that reduction in the record of the proceeding mandatory defendant’s that the district court would adhere to the vised release for excess time served re- same sentence we remanded this case. I sults not from the operation automatic conclude, therefore, statute, solely from the in calculating Blackburn’s Guidelines sen- exercise discretion under 28 tence was not harmless and that Black- 3583(e) supervised-re- U.S.C. to reduce burn’s claim is not I moot. Because would lease terms.2 Id. at appeal, respect- reach merits Barresi, In United States v. fully dissent. (2d Cir.2004), explicitly rejected majority claims, dicta, reading of Johnson advanced ma- Supreme ruling Court’s jority sweeps here —that Johnson more Johnson, than broadly holding. acknowledged We (2000), L.Ed.2d “suggests to re- three-year “if the duce of supervised Blackburn’s term on Barresi had been man- potential release, consequences particular consider Blackburn should he violate his ends serves carceration, distinct from those in- served release, that, like a Congress's objective future criminal convic- would be tion, possibility a prison if a Blackburn is “able—and unfulfilled court used excess time required by prevent a Nothing indeed law-—to ... to offset term. Kemna, occurring.” Spencer speaks in Johnson a v. to court's deter- discretionary (1998) super- mination of what term of (internal omitted).) appropriate vised quotation particular release is in a marks case. apply doctrine does not to the one colorable argument Blackburn has that his case is not 2. The Court being noted even where the term possibility moot—that that his term statute, (a supervised by of supervised release is mandated consequence release direct “may conviction) a district court terminate individu- his would be reduced in event supervised obligations al's a release ‘at time remand. expiration year after supervised of one gist analysis 1. The Court's in Johnson release.”' at 120 S.Ct. 1114 Congress (quoting 3583(e)(1)). § was where has mandated a 18 U.S.C. Barresi also statute, release.3 court would the district dated super- a com- Barresi’s makes clear that correct have been [at reduced term could be a who has served excess pensate defendant vised-release for extra time compensate to resentencing] serving a non-mandato- prison time and (citing John- Id. at 674 spent prison.” term either ry supervised-release re- 1114). 54-56, son, We exercising sentencing the its defendant resen- the case for nevertheless remanded 3583(e)(1). authority § under already com- had tencing although Barresi substantially to Bar- This case is similar because he was pleted prison governing resi. The statute super- non-mandatory term serving a 924(a)(2), sentence, § does not 18 U.S.C. court had release the district vised a provide mandatory minimum term of Id. 675. We in- to reduce. discretion Because the maxi- to determine the district structed mum term incarceration under incarceration it first what sentence of 924(a)(2) § years, is ten Blackburn’s of- if it had not consid- imposed felony, fense was a Class C 18 U.S.C. upwardly de- impermissible factors ered 3559(a)(3). longest § term of sentence. We parting from the Guidelines that the district court could vised release if the district also directed imposed years, three 18 U.S.C. prison a term less would have 3583(b)(2), court could also have but the actually imposed, than the sentence term at lesser term or no all then whether wishes to “should consider sentencing regime, the post-Booker under its to Barresi’s exercise discretion reduce and could so now. If we were we to do ... to supervised-release term order that the four- the merits and hold reach the fact that Barresi com- for compensate under level U.S.S.G. prison his ... term before re- pleted case, does not apply place.” Barresi thus took Id. (and Johnson), Barresi under for unequivocally proposition stands use discretion to reduce court could that, resentencing when a defendant who supervised release to Blackburn’s term of of incarcer- has his or her term him excess time he compensate ation, may compensate for a district court prison. Apker, Levine v. served incar- time the defendant was Cf. Cir.2006) (2d that a (holding exercising cerated its discretion challenge policy petitioner’s term habeas non-mandatory duce the defendant’s lenge length sentence. See Nothing of his her 3. is inconsistent Barresi Mercurris, DeLeon, holding of United States Cir.1999). Mercurris, although the (1st Cir.2006) propo- (citing for the Mercurris been sentenced defendant had that where a defendant sentenced sition following his incarcera- deported release but tion, upon completion deported of his he was incarceration, completion of a term of Id. at We found the defen- term. light sentencing error is moot in the claim of challenge to the of his sentence dant's that he or she will of the remote chance in the of his release from moot legally to the United States return because, alia, "only quixotic had inter he release); subject United cf. legally returning to the chance Lares-Meraz, 352, v. 452 F.3d 354-56 States States.” Id. at 294. Mercurris thus stands (5th Cir.2006) (finding that the Booker chal- proposition that a the limited defendant lenge of a defendant who was sentenced to following deported his or her release who is deported supervised-release term but prison and a remote chance who faces moot, completion his was not incarceration being subject supervised-release of ever to the harmless). that the error was portion chal- of his or her sentence cannot 268 effectively Bureau regard- analysis

and rule the of Prisons This is the majority the prisoner ing the maximum time a could undertakes in combing record community in a sentencing proceeding, serve corrections center and it the analy- is petitioner was had appropriate not moot where the sis we have found in consider- errors, see, completed serving ing e.g., term and was Booker Lake, 111, release because the v. 419 F.3d 113-14 Cir. remand, 2005); “might,” “modify district court on Sharpley, United States v. 399 F.3d 123, length [petitioner’s] supervised majority, 127 how- lease”). ever, conflates its that determination case error did affect majority acknowledges that the dis- proceedings analy- harmless-error —a trict court could reduce Blackburn’s sis—with the conclusion that relief so at resentencing vised-release term under speculative remote and as to make the Barresi, Johnson and we therefore so, doing ignores impor- case moot. In agree challenges that as such tant distinctions between direct and collat- contends, always are not It moot.4 howev- conviction, consequences eral on er, that record is clear that the district hand, unlikely one and relief that would have maximum remote, opposed to on the other. term of regardless applicability en- Kemna, 1, Spencer v. 118 Believing hancement. it is 978, (1998), 140 L.Ed.2d 43 the Su- court would reduce Black- preme peti- Court concluded that a habeas supervised-release remand, burn’s on challenge tioner’s revoking to an order majority concludes that Blackburn’s parole petitioner was moot where com- claim disagree is moot. I with both of the pleted the entire term of imprisonment majority’s conclusions: the concept of underlying parole revocation before mootness, error, rather than harmless the district court on peti- ruled his habeas guide analysis should and that tion and could not establish a “collateral sentencing error did affect Blackburn’s consequence” of 7, his conviction. Id. at sentence. 14-16. rejected The Court specula- as too purported tive several majority’s Given collateral acknowledgment conse- quences the district court contingent could resentence involved two (1) Blackburn to a reduced events: subsequent whether the collat- term, occur, (2) proceeding ultimate conclusion should be not eral ever moot, the case is but that whether the revocation would be used the Guidelines calculation was against harmless. the defendant in that proceeding.5 Every (1st Cir.2002); Scott, appeals federal court of that has con- Dawson v. 50 884, (11th challenge Cir.1995); sidered issue has held F.3d n. 2 886 see also Curen, 14, 3, Jago sentence defendant's is not v. Van n. 21 102 31, (1981) curiam) moot when the defendant has (per serving (finding term of incarceration but petitioner a non- case not moot where was mandatory parole). See (5th Pettiford, 442 Johnson F.3d Cir.2006); Allen, United States v. F.3d purported 5. One consequence collateral con- (9th Cir.2006); Spencer sidered petitioner's —whether Larson, (7th Cir.2005); against revocation could be used him in a Castro-Rocha, United States v. parole proceeding longer future “no —was (10th Cir.2003); contingent” n. petitioner United States v. had con- (en McCoy, (D.C.Cir.2002) F.3d serving victed of another crime banc); Molak, Supreme term the time Court Although the court noted the the Spencer does not control at 15-16. Id. appeals the disagreement among courts this case because Blackburn’s resolution the and applicability as to his expired has not and entire sentence gave Blackburn “credit” at stated that is a direct conse- supervised-release term issues,” legal for close “some Moreover, the his conviction. quence of court applied the district nonetheless direct, is also rather potential relief here calculating enhancement collateral, because we contingent than level, exposed offense Blackburn to district court’s disagreed with the Guide- range of 46 57 months’ im- Guidelines for ruling, lines we would remand resen- The district court sentenced prisonment. however, tencing. majority, appears The imprisonment— Blackburn to 37 months’ analysis Spencer import implicitly top range the Guidelines that would a ruling that by claiming into this case applied without four-level en- is “so to Blackburn remand favorable But hancement. we should not conclude speculative” remote and as make engaged in a that disin- majority could take case moot. While by of hand genuous sleight applying reasonable, erroneous, position albeit in its Guidelines calculation is as to that relief on remand so in its only remove the enhancement harmless, hardly is make relief Although the post-Booker sentence. sen- here, “speculative” where “remote” may reflect the district tence consequence of Blackburn’s convic- direct uncertainty misgivings or about tion is issue. enhancement, the court nonetheless short, imposed by In the restrictions in its included the enhancement Guide- terms of Blackburn’s most in- lines calculation. The reasonable injury, caused term constitute a concrete transcript, ference from sentence, by his conviction and view, my gave (at part) by least in resentenc- dressable it per- Blackburn some credit what Spencer, 523 ing proceeding. See ],” “close legal ceived issue[ majority therefore Black- departure the nine-month from claim determining errs that Blackburn’s range cannot be com- burn’s concluding moot rather than this issue. The dis- pletely attributed to event, error was harmless. stated on the record trict “[tjhere support legal record does not the view some close calculation, if er- I think to be ad- district court’s Guidelines needed issues dressed, give you for.” The roneous, credit was harmless. Moreover, putting appeal. this distinction heard 523 U.S. at conviction. aside, advisory post- rejected the Guidelines are argument while 978. The Court Booker, mootness, noting parole the district court's discretion im- against that the state factors set posing cabined gives parole board almost “unlim- sentence statute 3553(a) far determining §at and is therefore whether to forth ited discretion” in Hamdi, prior See grant parole parole "unlimited.” factor, Cir.2005) (finding chal- “simply one revocation is therefore lenge length of who many” parole defendant among to be considered sentence petition- moot where sentence not potential use of had board. Id. availability consequence was parole proceeding collateral er’s in a future revocation inadmissibility discretionary Spencer was conse- waiver of at issue in a collateral two bear on quence petitioner's had lower sentence "would because the sentence contrast, criteria” for the exercise discre- expired. By of Black- three ... tion). consequence a direct of his burn's sentence is may thus indicated that resentencing district court several district court do when a impose into figured factors its decision to As we in Crosby, “[p]er- defendant. noted of a non-Guidelines sentence 37 months. haps appellate some cases an at I take the its word guess could make educated § not likely outcome remand [for resentenc- influencing sole its factor decision ing], guess wrong, but that be might ab- impose a It non-Guidelines sentence. a sent clear indication the original sen- appears possible therefore like- —whether tencing supporting the inference that the ly or not—that the district court imposed same sentence to a lesser sentenced Blackburn ...,” 397 F.3d 117-18. imposed term incarceration had acknowledge sentencing error the enhancement and that Blackburn’s harmless, would be claim Blackburn’s “nontrivially” sentence would have been moot, if might be the district court had lower than 37 months. See United States sentenced Blackburn min- mandatory to a Crosby, 397 F.3d imum Sharpley, sentence. See challenge declines to majority (finding at 126-27 district court’s use of reading transcript, al- mandatory regime the Guidelines as a though it acknowledges that Blackburn’s harmless error because the court sentence “the applicabil- reflects uncertain sentence). mandatory minimum It is ity very At enhancement.” clear a sentencing less error would least, transcript does harmless, moot, claim give us adequate assurance that dis- court, considering after the factors trict court would have the same forth 3553(a), set at 18 U.S.C. made 2K2.1(b)(5)’s prison regardless term impose pris- clear it would same applicability. It is this lack of assurance term supervised sentence or release respect to Blackburn’s term regardless the propriety of its Guide- because, appeal that makes this not moot lines calculation. See United Barresi, as we held in the district court Bah, Cir.2006) (8th (de- on remand could exercise discretion to clining a post-Booker to find Guidelines reduce calculation error harmless to compensate responsibility court’s deter- time. mine the appropriate range Guidelines Nor does the record reflect the district though even the district court announced unambiguous to impose intent an identical alternative sentence that was three-year release not- not based on an alternative cal- Guidelines withstanding potential calculat- culation but was intended cover ing Blackburn’s range. Guidelines errors); potential Crosby, calculation cf. majority divines the district court’s F.3d (noting at 111-12 fulfill “to concern change that Blackburn life- statutory duty th[e] to ‘consider’ the style sufficiently expression clear in- Guidelines, sentencing judge nor- will tent that it would not reduce Blackburn’s mally have to determine the applicable of supervised to compensate range” except some circum- for the fact that Blackburn involving stances difficult factual determi- prison sentence before resentencing could nations, calculations, complex such as loss occur. wholly This conclusion is unwar- or unclear ju- policy ranted. Our statements regarding recent Sixth Amendment risprudence availability teaches us that it a departure); is not appellate Rattoballi, predict role courts what States v.

(2d Cir.2006) (“[T]he calculating range, be Guidelines I guidelines cannot statutory in just factor’ called ‘another would conclude that error 3553(a), they § list, are 18 U.S.C. not was harmless. multiple of the fac- only integration I Because think we should reach the and, their important exceptions, tors respectful- appeal, merits of Blackburn’s I based the actual calculations were ly ap- dissent from the dismissal of this (internal quo- many judges.” sentences peal. omitted)). Here, majori- marks tation acknowledges that

ty impose

never stated applica- regardless

same sentence

bility of the enhancement. very on to make the goes

It nevertheless objectionable guess” we found

“educated concluding not that error Crosby harmless, was but that Blackburn’s claim America, UNITED STATES is moot. I do not think that the district Appellee, expressed its intentions so the need for remand for “as obviate any clarification.” OLMEDA, Antonio Defendant- we have in the Sixth As noted Amend- Appellant. context, usually easy

ment “it will certainty divine with Docket No. 05-4331-CR. imposed the same sen- judge would have Lake, notwithstanding of Appeals, tence” error. United States Court I not think this is one of F.3d 113. do Second Circuit. “ ... can confi- ‘rare’ where we case[s] Argued: April 2006. dently say [potential] sentencing that a at 114. “The was harmless.”6 Id. error Aug. Decided: 2006. provides the guideline range applicable against judge frame reference id., sentence,” appropriate

chooses identified range cannot conclude court, erroneous,

by the district did Instead,

affect Blackburn’s sentence. be- case is not moot

cause this sentencing transcript

Barresi

gives us clear indication that the dis- imposed

trict court would same period and the same regardless

vised release Lake, labeling supervised-release term be of difficulty Blackburn's 6. noted given independent significance harmless that the Guide- Booker error that the court such advisory that district courts lines are now same term even if its would have forth at 28 must consider all of factors set and the calculation erroneous 3553(a) imposing sentence. 419 U.S.C. exces- prison term was therefore Here, it is difficult to determine sive. that the district considered

Case Details

Case Name: United States v. Wesley Blackburn

Court Name: Court of Appeals for the Second Circuit

Date Published: Jul 26, 2006

Citation: 461 F.3d 259

Docket Number: Docket 05-1875-cr

Court Abbreviation: 2d Cir.