                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 19a0498n.06

                                   Case Nos. 17-4119/18-3010

                          UNITED STATES COURT OF APPEALS
                               FOR THE SIXTH CIRCUIT

                                                                                  FILED
       17-4119                                                              Sep 27, 2019
                                                                        DEBORAH S. HUNT, Clerk
UNITED STATES OF AMERICA,                           )
                                                    )
       Plaintiff-Appellee,
                                                    )
       v.                                           )       ON APPEAL FROM THE UNITED
ALEXANDER NATHANIEL PENN,                           )       STATES DISTRICT COURT FOR
                                                    )       THE NORTHERN DISTRICT OF
       Defendant-Appellant.                         )       OHIO
                                                    )
       18-3010                                      )
ALEXANDER NATHANIEL PENN,                           )
    Petitioner-Appellant,                           )
                                                    )
       v.
                                                    )
UNITED STATES OF AMERICA,                           )
       Respondent-Appellee.                         )



       BEFORE: SUTTON, COOK, and THAPAR, Circuit Judges.

       THAPAR, Circuit Judge. Alexander Penn is serving five years in prison because he

violated the conditions of his supervised release. Penn brought a § 2255 motion that could shorten

his sentence by several years. The district court held that the motion was moot (we disagree).

Penn also claims the district court should have sua sponte stayed his supervised release sentencing

(we again disagree). Thus, we reverse in part and affirm in part.
Case Nos. 17-4119/18-3010, United States v. Penn


                                                I.

       Back in 2006, Penn pled guilty to being a felon in possession of a firearm. Because of his

criminal history, Penn received an enhanced punishment under the Armed Career Criminal Act,

18 U.S.C. § 924(e). The district court sentenced Penn to a term of imprisonment followed by

supervised release.

       After Penn began his supervised release, the Supreme Court decided Johnson v. United

States, 135 S. Ct. 2551 (2015), which held the residual clause of the ACCA unconstitutionally

vague. Johnson cast doubt on whether Penn could continue to be treated as an armed career

criminal. So Penn asked for permission to file a second § 2255 motion, arguing that he no longer

had enough predicate offenses to qualify under the ACCA.

       As this court considered his request, Penn separately pled guilty to robbing banks in Ohio

and Pennsylvania. The district court heard about these new charges and scheduled a revocation

hearing for Penn’s felon-in-possession sentence. At the hearing, Penn admitted that he had

violated his release conditions by committing several bank robberies but disputed the maximum

sentence he faced.

       Ordinarily, felons convicted of unlawfully possessing a firearm cannot spend more than

two years in prison upon revocation of their supervised release. See 18 U.S.C. §§ 924(a)(2),

3559(a)(3), 3583(e)(3). Yet Penn faced a five-year statutory maximum because he was classified

as an armed career criminal. See id. §§ 924(e)(1), 3559(a)(1), 3583(e)(3). Penn asked for a lenient

sentence since his § 2255 motion might decrease his statutory maximum. But the district court

was not persuaded. So it revoked Penn’s supervised release and sentenced him to the maximum

term—five years. And it made that term consecutive to his sentences for the bank robberies. Penn

then appealed.



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Case Nos. 17-4119/18-3010, United States v. Penn


       Meanwhile, this court granted Penn’s request to file a second § 2255 motion and sent the

matter back to the district court. Soon after, the district court denied the motion as moot. The

district court reasoned it could not give any further relief on the felon-in-possession sentence

because it had revoked that sentence. Again, Penn appealed.

       This consolidated appeal raises two questions: Did the district court err when it decided

that Penn’s § 2255 motion was moot? And did the district court err by not sua sponte staying

sentencing on Penn’s supervised release violations?

                                               II.

       Mootness. The federal judiciary has the power to decide “Cases” and “Controversies.”

U.S. Const. art. III, § 2. This power reaches cases when a criminal defendant suffers an injury

traceable to the government likely to be redressed by a favorable judicial decision. United States

v. Albaadani, 863 F.3d 496, 502 (6th Cir. 2017). Otherwise, the case is moot.

       Applying that tried-and-true test for mootness makes quick work of this issue. If Penn is

not an armed career criminal, then his sentence will be shortened by several years. Spending more

time in prison for an allegedly erroneous sentencing enhancement counts as an injury traceable to

the government. And a favorable judicial decision would redress Penn’s injury. Thus, Penn’s

claim is not moot.

       The government insists that Penn’s § 2255 motion is moot because, the government says,

his “initial sentence” no longer exists. As the government sees it, “[t]he new sentence imposed

upon revocation of Penn’s supervised release extinguished the prior, underlying sentence” for the

felon-in-possession conviction. Appellee Br. at 11. And because that sentence expired, his motion

no longer matters. The government cites a single, unpublished case for support, United States v.

Roach, 257 F. App’x 956 (6th Cir. 2007).



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Case Nos. 17-4119/18-3010, United States v. Penn


       But “supervised release punishments” are “part of the penalty for the initial offense.”

United States v. Haymond, 139 S. Ct. 2369, 2379–80 (2019) (plurality opinion) (cleaned up). That

makes sense. After all, treating revocation punishments as independent of the original sentence

would raise serious constitutional concerns. Take the Double Jeopardy Clause. Defendants often

have their supervised release revoked because of new criminal activity. Those defendants may

then be criminally prosecuted for the same conduct that triggered the revocation of their supervised

release (and thus face additional prison time). If revocation sentences were separate from the

sentence underlying the original conviction, this practice might amount to double punishment for

identical conduct. See Johnson v. United States, 529 U.S. 694, 700–01 (2000). But it doesn’t

because the revocation sentences are part and parcel of the sentence underlying the original

conviction. See United States v. Wheeler, 330 F.3d 407, 412 (6th Cir. 2003). So the government’s

premise is wrong.

       Nor does Roach change anything. For one thing, it is unpublished and thus not binding.

United States v. Yates, 866 F.3d 723, 728 (6th Cir. 2017). But more importantly, it is irrelevant

here. Jeffrey Roach claimed on appeal that the district court imposed too long a period of

supervised release. Copy of Order Revoking Supervised Release, United States v. Roach, No. 06-

5448 (6th Cir. 2007), ECF No. 56 at 1 n.1. Roach’s appeal became moot because the district court

eliminated his supervised release, thereby curing the injury. Roach, 257 F. App’x at 956. That

hasn’t happened here. Penn is still considered an armed career criminal and, as a result, faces

additional time in prison. Penn thus collaterally attacks a legal error infecting his original sentence

and all future revocation punishments.

       As a last resort, the government falls back on its argument that Penn’s § 2255 motion is

untimely. We decline to answer that question in the first instance. District courts should resolve



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Case Nos. 17-4119/18-3010, United States v. Penn


timeliness and equitable tolling issues because they can make a factual record to aid their decision

making. See generally In re McDonald, 514 F.3d 539, 543–44 (6th Cir. 2008). Penn’s motion

may or may not be timely—for now, we will let the district court sort that out.

         Revocation of Supervised Release. Penn separately argues that the district court erred when

it did not stay his revocation sentencing on the supervised release violation until his § 2255 motion

had run its course. In support, he cites some dicta from United States v. Hall, 735 F. App’x 188

(6th Cir. 2018). But three problems:

         First, Hall is unpublished and thus not binding. Yates, 866 F.3d at 728. Second, Hall does

not say that district courts must stay sentencing until the § 2255 motion is resolved; it simply says

that they may do so. 735 F. App’x at 191–92. Finally, Penn never asked the district court to stay

the proceedings. While district courts certainly have the power to stay revocation proceedings,

Penn has pointed to no law showing they must do so sua sponte. So his argument on this front

fails.

                                                 ***

         We REVERSE the district court’s determination that Penn’s § 2255 motion is moot and

REMAND for further consideration in his collateral proceedings. We AFFIRM the district

court’s revocation order in the direct appeal.




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