                  FOR PUBLICATION

  UNITED STATES COURT OF APPEALS
       FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,              No. 17-10448
         Plaintiff-Appellee,
                                         D.C. No.
             v.                    2:16-cr-01012-SRB-1

JOSEPH M. ARPAIO,
       Defendant-Appellant.             OPINION


      Appeal from the United States District Court
               for the District of Arizona
       Susan R. Bolton, District Judge, Presiding

        Argued and Submitted October 23, 2019
              San Francisco, California

                  Filed February 27, 2020

      Before: Jay S. Bybee, N. Randy Smith, and
          Daniel P. Collins, Circuit Judges.

                  Opinion by Judge Bybee
2                   UNITED STATES V. ARPAIO

                            SUMMARY*


                           Criminal Law

    The panel affirmed the district court’s judgment
dismissing former Maricopa County Sheriff Joseph Arpaio’s
criminal proceeding with prejudice, and denying vacatur of
the district court’s verdict finding Arpaio guilty of criminal
contempt, in a case in which Arpaio was granted a pardon by
the President before the district court could sentence him.

    The panel held that because the verdict can have no future
preclusive effect, Arpaio’s claimed errors in the verdict are
moot; and Arpaio’s appeal from the denial of vacatur of the
verdict is appealable as a final order over which this court has
jurisdiction under 28 U.S.C. § 1291.

    Arpaio claimed that the district court abused its discretion
by refusing to vacate the district court’s verdict under the
Munsingwear rule, which provides for vacatur in cases
mooted while on appeal. The panel held that in this case,
vacatur would not further the purposes of Munsingwear
because the district court’s verdict finding Arpaio guilty of
criminal contempt has no legal consequences. The panel
explained that the verdict did not satisfy either of the two
conditions for preclusive effect in a subsequent action
because (1) there was no final judgment of conviction, as
Arpaio was never sentenced; and (2) the verdict was
inconsistent with, and thus not essential to, the final
judgment, which dismissed the criminal contempt charge.

    *
      This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
                UNITED STATES V. ARPAIO                   3

                       COUNSEL

John D. Wilenchik (argued) and Dennis I. Wilenchik,
Wilenchik & Bartness P.C., Phoenix, Arizona; Mark
Goldman and Jeff S. Surdakowski, Goldman & Zwillinger
PLLC, Scottsdale, Arizona; for Defendant-Appellant.

James I. Pearce (argued), Appellate Section, Criminal
Division; Matthew S. Miner, Deputy Assistant Attorney
General; John P. Cronan, Acting Assistant Attorney General;
John Dixon Keller, Deputy Chief; Victor R. Salgado and
Simon Joseph Cataldo, Trial Attorneys, Public Integrity
Section; United States Department of Justice, Washington,
D.C.; for Plaintiff-Appellee.

Christopher G. Caldwell (argued), Boies Schiller Flexner
LLP, Los Angeles, California, Special Prosecutor Plaintiff-
Appellee.

Steven A. Hirsch, Ian Bassin, Justin Florence, Aditi Juneja,
and Anne Tindall, The Protect Democracy Project Inc.,
Washington, D.C.; Jean-Jacques Cabou, Shane R. Swindle,
and Katherine E. May, Perkins Coie LLP, Phoenix, Arizona;
Locke E. Bowman and David M. Shapiro, Roderick and
Solange Macarthur Justice Center, Chicago, Illinois; Ronald
A. Fein and Shanna M. Cleveland, Free Speech for People,
Newton, Massachusetts; Noah Messing, Messing & Spector
LLP, New York, New York; Phil Spector, Messing & Spector
LLP, Baltimore, Maryland; Dennis Aftergut and Louise H.
Renne, Coalition to Preserve, Protect, and Defend, San
Francisco, California; for Amici Curiae Laurence H. Tribe;
Martin H. Redish; Lawrence Friedman; William D. Rich;
Citizens for Responsibility and Ethics in Washington;
Coalition to Preserve, Protect and Defend; Free Speech for
4                UNITED STATES V. ARPAIO

People; MoveOn; The Protect Democracy Project, Inc.;
Republicans for the Rule of Law; and The Roderick and
Solange Macarthur Justice Center.

Spencer G. Scharff, Scharff PLC, Phoenix, Arizona; R.
Bradley Miller, Guttman Bushner and Brooks PLLC,
Washington, D.C.; for Amicus Curiae Certain Members of
Congress.

Dennis P. Riordan and Donald M. Horgan, Riordan &
Horgan, San Francisco, California; for Amici Curiae Erwin
Chemerinsky, Michael E. Tigar, and Jane B. Tigar.


                         OPINION

BYBEE, Circuit Judge:

    Defendant-Appellant Joseph Arpaio, the former Sheriff of
Maricopa County, Arizona, was found guilty of criminal
contempt in a bench trial for willfully violating a preliminary
injunction prohibiting him from enforcing federal civil
immigration law. After entry of the verdict, but before the
court could sentence Arpaio, he was granted a pardon by the
President. Arpaio asked the district court to vacate the
verdict and dismiss the criminal case against him with
prejudice. The district court granted the motion to dismiss
the case with prejudice, but refused to vacate the verdict.
Arpaio appeals that decision, arguing that vacatur was
required under the Supreme Court’s decision in United States
v. Munsingwear, Inc., 340 U.S. 36 (1950). Because we find
that Munsingwear does not apply in this case, we affirm the
judgment of the lower court.
                 UNITED STATES V. ARPAIO                     5

       I. FACTS AND PROCEDURAL HISTORY

    Joseph Arpaio was the elected sheriff of Maricopa
County, Arizona, from 1993 through 2016. In 2007, a class
of Hispanic Maricopa County residents sued Arpaio in the
U.S. District Court for the District of Arizona under
42 U.S.C. § 1983. They alleged “illegal, discriminatory and
unauthorized enforcement of federal immigration laws
against Hispanic persons in Maricopa County.” According to
the plaintiffs, Arpaio and his officers, “acting under color of
law and in concert with one another, engaged in profiling of”
Hispanic motorists by detaining persons based solely on their
ethnicity. In 2011, Judge Murray Snow preliminarily
enjoined Arpaio and the Maricopa County Sheriff’s Office
(MCSO) “from detaining any person based on knowledge,
without more, that the person is unlawfully present within the
United States.” Ortega-Melendres v. Arpaio, 836 F. Supp. 2d
959, 992–93 (D. Ariz. 2011), aff’d, 695 F.3d 990 (9th Cir.
2012). In 2013, Judge Snow issued a permanent injunction.
That injunction barred the MCSO from “[d]etaining, holding,
or arresting Latino occupants of vehicles in Maricopa County
based on a reasonable belief, without more, that such persons
were in the country without authorization.”

    In 2016, following extensive hearings, Judge Snow
concluded that Arpaio and the MCSO had “intentionally
failed to implement the Court’s preliminary injunction.”
Judge Snow held Arpaio in civil contempt, and Arpaio
conceded his liability for civil contempt. In a separate order,
Judge Snow found that Arpaio had “intentionally disobeyed”
the injunction, and that he “did so based on the notoriety he
received for, and the campaign donations he received because
of, his immigration enforcement activity.” On that basis,
6                   UNITED STATES V. ARPAIO

Judge Snow referred the matter to another judge to adjudicate
the criminal contempt charges against Arpaio.

     The case was randomly assigned to Judge Susan Bolton,
who presided over the prosecution of Arpaio for
“[d]isobedience or resistance to [the court’s] lawful writ,
process, order, rule, decree, or command.” 18 U.S.C.
§ 401(3). Judge Bolton requested that the U.S. Department
of Justice prosecute the case, which it agreed to do. See Fed.
R. Crim. P. 42(a)(2). In July 2017, after a five-day bench
trial, the district court issued “Findings of Fact and
Conclusions of Law,” concluding that Arpaio was guilty of
criminal contempt of court. United States v. Arpaio, No. CR-
16-01012-001-PHX-SRB, 2017 WL 3268180, at *7 (D. Ariz.
July 31, 2017). Judge Bolton scheduled sentencing for
October 2017.

    Arpaio was never sentenced. On August 25, 2017, before
the district court could pronounce sentence, President Trump
granted Arpaio a full and unconditional pardon “[f]or his
conviction of Section 401(3) . . . and for any other offenses
under Chapter 21 of Title 18, United States Code that might
arise, or be charged, in connection with Melendres v.
Arpaio.”1 Relying on the pardon, Arpaio asked the district


    1
       Although President Trump pardoned Arpaio for his “conviction” for
criminal contempt, Arpaio was never technically “convicted” of anything.
Colloquially, we use the term “convicted” to describe when an individual
has been found guilty of a crime. See, e.g., Richard Perez-Pena, Former
Arizona Sheriff Joe Arpaio is Convicted of Criminal Contempt, N.Y.
Times (July 31, 2017); Colin Dwyer, Ex-Sheriff Joe Arpaio Convicted of
Criminal Contempt, NPR (July 31, 2017). Legally, though, using the term
in this way is imprecise because there is a technical difference between a
“conviction” and a “judgment of conviction.” Arpaio suffered a
“conviction,” but not a “judgment of conviction,” which does not occur
                    UNITED STATES V. ARPAIO                              7

court to dismiss his criminal case with prejudice and to
“vacate the verdict and all other orders.” The district court
granted Arpaio’s motion to dismiss the case with prejudice,
but denied vacatur of the verdict. United States v. Arpaio,
No. CR-16-01012-001-PHX-SRB, 2017 WL 4839072, at *2
(D. Ariz. Oct. 19, 2017). The district court held that “[a]
presidential pardon must be accepted to be effective.” Id. at
*1. The court found that Arpaio “accepted the pardon before
a judgment of conviction was entered,” and accordingly,
“[t]he pardon undoubtedly spared [Arpaio] from any
punishment that might otherwise have been imposed,” but did
not “revise the historical facts of this case.” Id. at *2
(quotation marks omitted).2

    Arpaio filed a timely appeal from the district court’s
refusal to grant the vacatur. He urges two points. First,
Arpaio argues that because his pardon mooted any challenge


until sentence is imposed. See United States v. Smith, 623 F.2d 627, 630
(9th Cir. 1980).

     Admittedly, we have not always used these terms with precision. But
in this case, precision is important. Accordingly, we will not refer to the
order for which Arpaio seeks vacatur as a “conviction,” but will instead
refer to it as the “verdict” or “finding of guilt.”
    2
       Following the issuance of the pardon, the Department of Justice took
the position that the district court should vacate the court’s verdict and
declined to defend the district court’s order. We appointed Christopher G.
Caldwell as a special prosecutor to defend the district court’s order. See
United States v. Arpaio, 887 F.3d 979 (9th Cir. 2018), reh’g en banc
denied by 906 F.3d 800 (9th Cir. 2018); see also Fed. R. Crim. P. 42(a)(2)
(“If the government declines the request, the court must appoint another
attorney to prosecute the contempt.”)

     The court thanks Mr. Caldwell for accepting the appointment and for
faithfully discharging his responsibilities as special prosecutor.
8                   UNITED STATES V. ARPAIO

to the court’s verdict, that verdict must be vacated, and it was
an abuse of discretion for the district court to refuse to do so.
At oral argument, however, Arpaio clarified that, if we agree
that his challenges to the findings of guilt are moot because
they will have no future preclusive effects, then he seeks no
further relief beyond that determination. Second, Arpaio
contends that, if the district court’s finding of guilt will have
future effects, then his challenges to those findings are not
moot and must be decided by this court on the merits. He
raises six issues that he claims warrant reversal of the district
court’s verdict of guilt.3

    II. JURISDICTION AND STANDARD OF REVIEW

    Ordinarily, we do not acquire jurisdiction over a verdict
of guilt in a criminal case until the sentence has been issued
and the judgment of conviction is final. See United States v.
Vela, 624 F.3d 1148, 1151 (9th Cir. 2010); see also Smith,
623 F.2d at 630 (“The general rule is that it is the judgment,
not the verdict, that is the ‘conviction.’”). We have no
authority here to review the district court’s “Findings of Fact
and Conclusions of Law” where the case was dismissed with
prejudice and no sentence was ever imposed, because we do
not have a final judgment of conviction before us and because
that verdict can have no future preclusive effect. Arpaio’s


     3
       Arpaio argues that (1) his prosecution for criminal contempt had to
be prosecuted under 18 U.S.C. § 402, which has a one-year statute of
limitations, which had run and, alternatively, entitled him to a jury trial;
(2) he was not present for the verdict, in violation of the Sixth
Amendment; (3) the finding of guilt for violating the preliminary
injunction was unsupported by the evidence; (4) the preliminary injunction
was not “clear and definite,” in violation of the Due Process Clause of the
Fifth Amendment; (5) he relied on the good faith advice of counsel; and
(6) he proffered a meritorious public authority defense.
                 UNITED STATES V. ARPAIO                       9

claimed errors in the district court’s verdict are therefore
moot, and we will not consider them further.

    By contrast, Arpaio’s appeal from the denial of vacatur of
the district court’s verdict is appealable as a final order over
which we have jurisdiction under 28 U.S.C. § 1291. See
United States v. Tapia-Marquez, 361 F.3d 535, 537 (9th Cir.
2004); see also Munsingwear, 340 U.S. at 40 (“Denial of a
motion to vacate could bring the case here.”). The district
court’s order dismissed the case with prejudice, even as it
denied the full vacatur that Arpaio sought. The district
court’s order concluded the litigation and made the order
appealed a final order.

    We review a district court’s grant or denial of equitable
vacatur for abuse of discretion. See Tapia-Marquez, 361 F.3d
at 537. “A district court would necessarily abuse its
discretion if it based its ruling on an erroneous view of the
law or on a clearly erroneous assessment of the evidence.”
Cooter & Gell v. Hartmarx Corp., 496 U.S. 384, 405 (1990);
see United States v. Hinkson, 585 F.3d 1247, 1261–62 (9th
Cir. 2009) (en banc).

                       III. ANALYSIS

     Arpaio’s threshold claim is that the district court abused
its discretion by refusing to vacate the district court’s verdict
under Munsingwear. Arpaio urges us to correct the district
court’s legal error and vacate the verdict. See 28 U.S.C.
§ 2106. We disagree with Arpaio, but follow a slightly
different path from the district court. We hold that, because
the mootness issue here arises from the fact that the district
court’s findings of guilt can be given no future preclusive
effect, the Munsingwear rule does not apply, and Arpaio is
10                 UNITED STATES V. ARPAIO

not entitled to vacatur. We thus affirm the judgment of the
district court.

    In Munsingwear, the Supreme Court was asked to
determine whether a judgment in a proceeding for injunctive
relief that was later mooted while on appeal could have
preclusive effect on a claim for damages. See 340 U.S.
at 37–38. In grappling with that question, the Court
observed:

         The established practice of the Court in
         dealing with a civil case from a court in the
         federal system which has become moot while
         on its way here or pending our decision on the
         merits is to reverse or vacate the judgment
         below and remand with a direction to dismiss.

Id. at 39. Though this statement was not Munsingwear’s
holding4—for the petitioner in Munsingwear was not even
asking for vacatur of the mooted decision—it has since
become known as “the Munsingwear rule,” which provides
for vacatur in cases mooted while on appeal. See, e.g., ACLU
of Nev. v. Cortez Masto, 670 F.3d 1046, 1065 (9th Cir. 2012)
(discussing “the Munsingwear rule”); see also Nat’l Union
Fire Ins. Co. v. Seafirst Corp., 891 F.2d 762, 765–66 (9th Cir.
1989) (same).

   The purpose underlying this rule “is to prevent an
unreviewable decision from spawning any legal


     4
      See U.S. Bancorp Mortg. Co. v. Bonner Mall P’ship, 513 U.S. 18,
23 (1994) (discussing Munsingwear and describing “the portion of . . .
Munsingwear describing the ‘established practice’ for vacatur” as
“dictum”).
                   UNITED STATES V. ARPAIO                         11

consequences, so that no party is harmed by what we have
called a ‘preliminary’ adjudication.” Camreta v. Greene,
563 U.S. 692, 713 (2011) (internal quotation marks omitted)
(quoting Munsingwear, 340 U.S. at 40–41); see also
Munsingwear, 340 U.S. at 40 (explaining that vacatur “clears
the path for future relitigation of the issues between the
parties and eliminates a judgment, review of which was
prevented through happenstance”). In this case, vacatur
would not further the purposes of Munsingwear because the
district court’s verdict finding Arpaio guilty of criminal
contempt has no legal consequences.

    The “general rule” for issue preclusion provides that a
“‘determination [in a prior case] is conclusive in a subsequent
action between the parties’” only “‘[w]hen an issue of fact or
law is actually litigated and determined by a valid and final
judgment, and the determination is essential to the
judgment.’” B&B Hardware, Inc. v. Hargis Indus., Inc.,
575 U.S. 138, 148 (2015) (emphasis added) (quoting
Restatement (Second) of Judgments § 27, at 250 (Am. Law
Inst. 1980)).5 The verdict Arpaio seeks to vacate satisfies
neither of these conditions. First, although the verdict would
have been essential to any final judgment of conviction, there
was no final judgment of conviction here, because Arpaio
was never sentenced. Second, for the final judgment that was
entered in this case—a dismissal of the criminal contempt
charge—the verdict was not only not essential to the
judgment, but was inconsistent with it. Because Arpaio
cannot be “harmed by . . . a ‘preliminary’ adjudication,”



    5
      The preclusive effect of a federal court judgment is governed by
federal law. See Semtek Int’l Inc. v. Lockheed Martin Corp., 531 U.S.
497, 507–08 (2001).
12                   UNITED STATES V. ARPAIO

Camreta, 563 U.S. at 713, we decline to apply the
Munsingwear rule to this case.

     We will explain both points in turn.

                                     A

    Though colloquially we refer to the district court’s finding
of guilt as a “conviction,” in reality, Arpaio never suffered a
final judgment of conviction for criminal contempt. “Final
judgment in a criminal case means sentence. The sentence is
the judgment.” Berman v. United States, 302 U.S. 211, 212
(1937); see Corey v. United States, 375 U.S. 169, 172 (1963)
(“An appeal may not be taken until after the pronouncement
of sentence.”). Here, the issuing of a presidential pardon, and
Arpaio’s acceptance of the pardon, preempted his sentencing.
Thus, there is no final judgment of conviction in this case;
instead, there was a final judgment of dismissal with
prejudice. This lack of a final judgment of conviction
precludes the attachment of “legal consequences,” Camreta,
563 U.S. at 713, such as a sentencing enhancement in a
subsequent criminal case or claim or issue preclusion in a
civil case.6 For this reason, vacating the verdict here would
not serve the purposes of Munsingwear.


     6
      We note that even if it were disposed to, the United States is barred
by the Double Jeopardy Clause from bringing a second criminal action
against Arpaio, as jeopardy in Arpaio’s trial attached when Judge Bolton
began hearing evidence, see Serfass v. United States, 420 U.S. 377, 388
(1975), and “[t]here can be little doubt that a dismissal with prejudice bars
any further action between the parties on the issues subtended by the
case,” Classic Auto Refinishing, Inc. v. Marino (In re Marino), 181 F.3d
1142, 1144 (9th Cir. 1999); see also Currier v. Virginia, 138 S. Ct. 2144,
2152–53 (2018); United States v. Castiglione, 876 F.2d 73, 75–76 & n.1
(9th Cir. 1989).
                   UNITED STATES V. ARPAIO                         13

    The lack of a judgment of conviction and the dismissal of
the charges with prejudice means that Arpaio is not subject to
an enhanced sentence in any subsequent case based on the
district court’s finding that Arpaio committed criminal
contempt. Although the U.S. Sentencing Guidelines
contemplate an enhanced sentence after a guilty verdict and
pending sentencing, U.S.S.G. § 4A1.2(a)(1), no such
enhancement can be imposed where no sentence was
ultimately imposed and the case was dismissed.7 The rule is
similar in Arpaio’s home state of Arizona, which only
prescribes sentence enhancements for final convictions, see
Ariz. Rev. Stat. § 13-707 (enhancing sentences for prior
“conviction[s]”); id. § 4-248(B) (defining “conviction” as “a
final conviction”), a term which the Arizona courts have
defined to mean “a judgment of conviction from which [a
defendant] has exhausted his right to appeal,” Campbell v.
Superior Court, 462 P.2d 801, 804 (Ariz. 1969).

     For similar reasons, Arpaio will not be subject to issue
preclusion or claim preclusion in any subsequent civil
litigation. As we noted above, the “general rule” for issue
preclusion provides that a “‘determination [in a prior case] is
conclusive in a subsequent action between the parties’” only
“‘[w]hen an issue of fact or law is actually litigated and
determined by a valid and final judgment.’” B&B Hardware,
Inc., 575 U.S. at 148 (emphasis added) (quoting Restatement
(Second) of Judgments § 27, at 250 (Am. Law Inst. 1980)).
In civil cases, “the availability of appellate review is a key
factor” in determining the preclusive effect of a judgment.


    7
     Section 4A1.2(a)(3) counts a conviction where “the imposition or
execution of sentence was totally suspended or stayed.” This provision
does not apply to Arpaio, because his sentence was neither stayed nor
suspended.
14                UNITED STATES V. ARPAIO

Bravo-Fernandez v. United States, 137 S. Ct. 352, 358
(2016). Similarly, claim preclusion requires proof of “(1) an
identity of claims, (2) a final judgment on the merits, and
(3) privity between parties.” Tahoe-Sierra Pres. Council, Inc.
v. Tahoe Reg’l Planning Comm’n, 322 F.3d 1064, 1077 (9th
Cir. 2003) (emphasis added) (quoting Stratosphere Litig.
L.L.C. v. Grand Casinos, Inc., 298 F.3d 1137, 1143 n.3 (9th
Cir. 2002)). The Restatement (Second) of Judgments has
addressed directly the “requirement of finality.” In general,
for claim preclusion, “a judgment will ordinarily be
considered final in respect to a claim . . . if it is not tentative,
provisional, or contingent and represents the completion of all
steps in the adjudication of the claim by the court, short of
any steps by way of execution or enforcement . . . .”
Restatement (Second) of Judgments § 13 cmt. b (Am. Law
Inst. 1982); see also id. cmt. g (noting that we should not read
“finality less strictly when the question is one of issue
preclusion”). The “factors supporting the conclusion that the
decision is final for the purpose of preclusion” are “that the
parties were fully heard, that the court supported its decision
with a reasoned opinion, [and] that the decision was subject
to appeal or was in fact reviewed on appeal.” Id. cmt. g
(emphasis added).

   Where the district court dismissed with prejudice
Arpaio’s criminal case before sentencing, there was no final
judgment of conviction, and the verdict was not subject to
appeal. There is no preclusion and no reason for us to apply
Munsingwear to this case.

                                 B

    The preclusion rules will not apply in any future litigation
for a second reason: The verdict was not a determination
                UNITED STATES V. ARPAIO                   15

essential to the actual, final judgment entered in this case.
The final judgment entered in this case was a dismissal with
prejudice, and the district court’s findings of fact and
conclusions of law played no role in that dismissal. In fact,
“[f]ar from being necessary to the judgment, [the findings
underlying the guilty verdict] cut against it—making them
quintessentially the kinds of rulings not eligible for issue-
preclusion treatment.” Bobby v. Bies, 556 U.S. 825, 835
(2009) (emphasis added) (citation and internal quotation
marks omitted); see also id. (“A determination ranks as
necessary or essential only when the final outcome hinges on
it.”) (citing 18 Charles Alan Wright, Arthur R. Miller &
Edward H. Cooper, Federal Practice and Procedure § 4421
(2d ed. 2002)). Again, the rationale for Munsingwear does
not apply. See Camreta, 563 U.S. at 713.

                    IV. CONCLUSION

    The district court’s judgment dismissing Arpaio’s
criminal proceeding with prejudice and denying vacatur of
the finding of guilt is affirmed. Because Arpaio’s challenges
to the district court’s finding of guilt are moot, we do not
address them.

   AFFIRMED.
