     Case: 08-10341 Document: 00511420996 Page: 1 Date Filed: 03/23/2011




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                 FILED
                                                                           March 23, 2011

                                       No. 08-10341                         Lyle W. Cayce
                                                                                 Clerk

UNITED STATES OF AMERICA,

                                                   Plaintiff - Appellee
v.

CLARENCE BOSTON, also known as Tim,

                                                   Defendant - Appellant




                   Appeal from the United States District Court
                        for the Northern District of Texas
                            USDC No. 4:92-CR-141-12


Before GARWOOD, ELROD, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
       Clarence Boston appeals from the district court’s decision to deny his
motion to reduce his sentence pursuant to 18 U.S.C. § 3582(c)(2) for his
conviction of possession with intent to distribute cocaine base. He argues the
district court failed to take into account the Section 3553(a) sentencing factors
and the reduced sentence for his crime provided in amendments to the
Sentencing Guidelines.        Because Boston was released from federal custody
before this case was decided, we DISMISS his appeal as moot.

       *
         Pursuant to 5TH CIR . R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .
R. 47.5.4.
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                                  No. 08-10341

      We must address, sua sponte, whether Boston’s release from prison in
December 2009 renders his case moot and strips this court of jurisdiction. “This
Court must examine the basis of its jurisdiction, on its own motion, if necessary.”
Mosley v. Cozby, 813 F.2d 659, 660 (5th Cir. 1987) (citation omitted). Federal
courts have    subject matter     jurisdiction   only   over “ongoing    cases or
controversies.” Lewis v. Cont’l Bank Corp., 494 U.S. 472, 477 (1990) (citing U.S.
Const. art. III, § 2). A suit “must be dismissed for want of jurisdiction if the
controversy ceases to exist at some point in the litigation.” Dailey v. Vought
Aircraft Co., 141 F.3d 224, 227 (5th Cir. 1998). A case becomes moot when the
plaintiff ceases to have a personal interest in the outcome of the suit. See id.
Jurisdictional issues are reviewed de novo. Ramirez-Molina v. Ziglar, 436 F.3d
508, 513 (5th Cir. 2006).
      We find two relevant decisions from this circuit. In one, an appellant
challenged his sentence as having violated his constitutional rights. See United
States v. Lares-Meraz, 452 F.3d 352, 353 (5th Cir. 2006) (per curiam). Before we
ruled on the appeal, Lares-Meraz was released from custody and, while serving
a term of supervised release, was deported. Id. at 354. The court found that
Lares-Meraz remained subject to supervised release. Id. at 355. District courts
have authority in some circumstances to modify supervised release, and the
showing of error in the initial sentencing might have led to relief.           Id.
Nonetheless, Lares-Meraz conceded that the effect of the alleged error no longer
caused him any harm because he was required by terms of his supervised release
not to re-enter the United States. Id. at 356. The panel held both that the case
was not moot, and also that no harm from the asserted error was claimed. Id.
at 355-56. Due to the absence of the claim of harm, the sentence was affirmed.
Id. at 356.
      A case decided in the aftermath of Lares-Meraz reached a different result
as to mootness. United States v. Rosenbaum-Alanis, 483 F.3d 381 (5th Cir.

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                                  No. 08-10341

2007). The challenge there was to the sentence imposed for being in the United
States illegally after a felony conviction. Id. at 382. After he filed his appeal,
but before it was decided, Rosenbaum-Alanis completed his sentence, began his
term of supervised release, and was deported. Id. at 383. The court held the
appeal to be moot. Id. The panel found Lares-Meraz did not control the case:
“the defendant in Lares-Meraz did not seek any relief that the court could not
grant” because he “conced[ed] that any error which formed the basis for his
appeal was harmless and present[ed] no argument that militated against
affirming the sentence . . . .” Id. Rosenbaum-Alanis, however, was “legally
unable” to return for resentencing, a fact that mooted the case because a
defendant had to be present in court in order to be resentenced. Id.
      Though the emphasis in each opinion is different, the central point is clear.
If the only relief sought by an appellant cannot be granted, the case is moot.
Neither Boston’s motion to the district court nor his appeal raise a challenge to
his term of supervised release. The statute Boston cites to dispute his sentence
only provides for the modification of a term of imprisonment, not supervised
release. See 18 U.S.C. § 3582(c)(2).
      Boston is not without a remedy, though.       A different statute permits a
motion to be filed by a current or former prisoner seeking a modification to a
term of supervised release. See 18 U.S.C. § 3583(e)(1); United States v. Jeanes,
150 F.3d 483, 484 (5th Cir. 1998).     On a former prisoner’s motion, a court may
terminate a term of supervised release after one year of supervised release if the
“interest of justice” and the defendant’s conduct warrant it. See 18 U.S.C. §
3583(e)(1). The procedure to follow is “pursuant to the provisions of the Federal
Rules of Criminal Procedure relating to the modification of probation,” which is
Rule 32.1. Id. Boston has not filed such a motion or even discussed the statute.
      The commentary to the Sentencing Guidelines section on which Boston
relies refers to the possibility of a reduction in supervised release when a former

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                                  No. 08-10341

prisoner has filed a Section 3583 motion.      See U.S. Sentencing Guidelines
Manual § 1B1.10 cmt. n.4(B).      The commentary states that even though a
district court may not reduce a sentence below time already served in response
to a Section 3582 motion, the court may take the fact that “a defendant may
have served a longer term of imprisonment than the court determines would
have been appropriate in view of the amended guidelines range” into account
when considering “any motion for early termination of a term of supervised
release under 18 U.S.C. § 3583(e)(1).” Id.
      When a district court makes a decision on a Section 3583(e)(1) motion, it
can consider “the fact that a defendant served time under a wrongful conviction
and sentence.” Jeanes, 150 F.3d at 485. This contemplates a defendant filing
a Section 3583 motion with the sentencing court and demonstrating why he
deserves a reduction in his term of supervised release before the court can alter
the term.
      Boston has not taken any action to address his term of supervised release,
as he has filed a motion solely to reduce his term of incarceration under the
terms of Section 3582. It is no longer in our power to grant the relief he seeks.
Our decision does not affect Boston’s right to file in the district court a motion
pursuant to Section 3583(e)(1) regarding supervised release. See 18 U.S.C. §
3583(e)(1).
      The appeal is DISMISSED AS MOOT.




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