10-2233-cr
United States v. McNeil



                          UNITED STATES COURT OF APPEALS
                              FOR THE SECOND CIRCUIT

                                        SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A
SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY
FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN
CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE
EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION
“SUMMARY ORDER”). A PARTY CITING TO A SUMMARY ORDER MUST SERVE A COPY OF IT ON
ANY PARTY NOT REPRESENTED BY COUNSEL.

      At a stated term of the United States Court of Appeals for the Second Circuit, held at
the Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of New
York, on the 27th day of June, two thousand eleven.

PRESENT: ROGER J. MINER,
         REENA RAGGI,
         GERARD E. LYNCH,
             Circuit Judges.

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UNITED STATES OF AMERICA,
                                 Appellee,

                     v.                                                        No. 10-2233-cr

CLIFTON J. MCNEIL,
                                 Defendant-Appellant.

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APPEARING FOR APPELLANT:                          Lawrence D. Gerzog, Esq., New York,
                                                  New York.

APPEARING FOR APPELLEE:                           Joseph J. Karaszewski, Assistant United States
                                                  Attorney, for William J. Hochul, Jr., United States
                                                  Attorney for the Western District of New York,
                                                  Buffalo, New York.
       Appeal from a judgment entered June 17, 2010 in the United States District Court for

the Western District of New York (William M. Skretny, Chief Judge).

       UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND

DECREED that the instant appeal is DISMISSED.

       Defendant Clifton J. McNeil was convicted in 2006 of illegal firearms possession and

sentenced to 48 months’ imprisonment and three years’ supervised release. He now appeals

from a sentence of ten months’ imprisonment and one year of supervised release for violation

of various conditions of his original term of supervised release. McNeil asserts that the

district court violated 18 U.S.C. § 3583(e)(4) by imposing a two-month curfew condition on

his supervised release at the same time that it imposed a ten-month prison term.

       The government has moved to dismiss this appeal as moot because McNeil, who was

arrested yet again for violating his release conditions during the pendency of this appeal, was

sentenced by the district court to time-served without any further supervised release. In

opposing dismissal, McNeil argues that his appeal still presents a live controversy because

“the district court retains jurisdiction beyond a term of supervised release to reimpose a term

of imprisonment and/or supervised release pursuant to 18 U.S.C. § 3583(i).” Appellant’s

Opp’n ¶ 4. That provision, however, authorizes a district court to impose further punishment

for a defendant’s violation of release conditions after the expiration of his supervision term

only “if, before its expiration, a warrant or summons has been issued on the basis of an

allegation of such a violation.” 18 U.S.C. § 3583(i). That is not this case. No violation

proceedings remain pending in the district court that would authorize future imposition of

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any punishment. Thus, McNeil’s challenge to conditions to which he is no longer subject

is moot. See United States v. Johnson, 446 F.3d 272, 276 (2d Cir. 2006).

      We have considered McNeil’s other arguments and conclude that they are without

merit. Accordingly, the government’s motion is GRANTED and McNeil’s appeal is

DISMISSED.

                                  FOR THE COURT:
                                  CATHERINE O’HAGAN WOLFE, Clerk of Court




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