           Case: 17-10637   Date Filed: 10/20/2017   Page: 1 of 7


                                                         [DO NOT PUBLISH]


            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                     __________________________

                            No. 17-10637
                        Non-Argument Calendar
                     __________________________

              D.C. Docket No. 2:03-cr-00232-WKW-SRW-1

UNITED STATES OF AMERICA,

                                                           Plaintiff - Appellee,

                                  versus

TIMOTHY JEVON SEWELL,
a.k.a. Timothy Sewel,
a.k.a. Glen Armstrong,
a.k.a. Jerome Sewell,

                                                         Defendant - Appellant.

                     __________________________

               Appeal from the United States District Court
                   for the Middle District of Alabama
                    __________________________

                            (October 20, 2017)

Before TJOFLAT, JORDAN, and ROSENBAUM, Circuit Judges.

PER CURIAM:
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      In 2004, a jury convicted Timothy Sewell of conspiracy to distribute

methamphetamine, possession with intent to distribute methamphetamine, and

possession of a firearm by a convicted felon. 21 U.S.C. §§ 841(a)(1) and 846; 18

U.S.C. § 922(g)(1). Sewell had his original sentence of 250 months’ imprisonment

vacated after succeeding in an action under 28 U.S.C. § 2255. At resentencing, the

District Court imposed a 188-month sentence, which exceeded the guideline range,

and five years of supervised release. He appeals that sentence.

      On appeal, Sewell advances two arguments. First, he contends that his

sentence was substantively unreasonable. Second, he argues that his supervised

release condition—which requires him to register as a sex offender under the Sex

Offender Registration and Notification Act (“SORNA”)—violates the Ex Post

Facto Clause of the United States Constitution. U.S. Const. art I, § 9, cl. 3. We

dismiss the first challenge as moot. We reject the second as foreclosed by

precedent.

                                               I.

      We first note that Sewell has served the challenged sentence. Records

indicate that Sewell was released from custody on August 18, 2017. See Federal

Bureau of Prisons Inmate Locator.1 Although the parties have not addressed




      1
          BOP Inmate Locator, available at https://www.bop.gov/inmateloc/.
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mootness,2 we consider it sua sponte because it is a jurisdictional issue. National

Advert. Co. v. City of Miami, 402 F.3d 1329, 1331–32 (11th Cir. 2005) (noting that

mootness “may be raised by the court sua sponte, regardless of whether the district

court considered it or if the parties briefed the issue”). Mootness is a question of

law that receives de novo review. Id. at 1331.

       Article III of the United States Constitution limits federal courts’ jurisdiction

to “Cases” and “Controversies.” U.S. Const. art. III, § 2, cl. 1. “A case on appeal

becomes moot, and ceases to be a case or controversy, when it no longer presents a

live controversy with respect to which the court can give meaningful relief.”

United States v. Al-Arian, 514 F.3d 1184, 1189 (11th Cir. 2008). Therefore, the

court must resolve the question before assuming jurisdiction. Id. The

“fundamental question” is whether events subsequent to the filing of the appeal

deprive the court of the ability to grant the appellant “meaningful relief.” Id.

       A sentencing appeal is generally moot when the sentence has already been

served. See United States v. Farmer, 923 F.2d 1557, 1568 (11th Cir. 1991). When

a defendant challenges a sentence that has been fully served, the court will dismiss

the appeal unless the defendant demonstrates some “collateral consequences”

flowing from his sentence. See Spencer v. Kemna, 523 U.S. 1, 3, 14–17, 118 S. Ct.

978, 981, 986–88 (1998) (dismissing as moot a habeas petitioner’s challenge to his

       2
        Both parties filed their briefs prior to Sewell’s release, and neither has made any
subsequent filings.
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parole revocation, when he had already served the underlying sentence, because he

failed to show sufficient collateral consequences stemming from the revocation);

Minnesota v. Dickerson, 508 U.S. 366, 371, 113 S. Ct. 2130, 2135 n.2 (1993)

(“[T]he possibility of a criminal defendant’s suffering collateral legal

consequences from a sentence already served precludes a finding of mootness.”)

(internal quotation marks and citations omitted); Farmer, 923 F.2d at 1568

(dismissing as moot defendant’s sentencing issue on direct appeal because he

completed his sentence and “ha[d] not advanced any argument that there may be

benefits . . . in having his sentence reduced” after he served it) (internal quotation

marks omitted). Nevertheless, we have declined to dismiss as moot challenges to

sentences when the challengers were on supervised release and success on appeal

could alter the supervised release portion of their sentences. See Dawson v. Scott,

50 F.3d 884, 886 n.2 (11th Cir. 1995); United States v. Page, 69 F.3d 482, 487 n.4

(11th Cir. 1995).

      Here, Sewell challenges his 188-month sentence—an upward variance from

the guideline range—as substantively unreasonable. Sewell’s success on his

sentence appeal would not affect the supervised release portion of his sentence.

Like the petitioners in Dawson and Page, Sewell remains on supervised release.

But in those cases, the appeals were not moot because the defendants’ success

could alter their supervised release. See Dawson, 50 F.3d at 886 n.2; Page, 69

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F.3d at 487 n.4. As for Sewell, regardless of the length of his sentence, the

maximum authorized term of supervision is five years. U.S.S.G. § 5D1.2(a)(1)

(providing for a term of supervised release of at least two years but not more than

five years for a defendant convicted of a Class A or B felony); Presentence

Investigation Report at 1 (designating Counts I and II here as Class B felonies and

Count IV as a Class A felony). Thus, if Sewell was to prevail, and we held that the

sentencing judge abused his discretion by imposing a substantively unreasonable

prison sentence, his position would not change. See United States v. Irey, 612 F.3d

1160, 1165 (11th Cir. 2010) (en banc) (explicating the proper standard of review).

Nothing in the record suggests that if the District Court had imposed a shorter

sentence, it would also have imposed a shorter or less restrictive period of

supervised release. As a result, we cannot provide Sewell with meaningful relief.

See Al-Arian, 514 F.3d at 1189. Finally, Sewell makes no arguments on this issue,

and thus has not made the required showing of collateral consequences. See

Spencer, 523 U.S. at 14–17, 118 S. Ct. 978 at 896–88 (asking “whether petitioner

demonstrated [collateral] consequences”) (emphasis added). Sewell’s sentencing

challenge is moot and this portion of his appeal dismissed.

                                          II.

      Sewell next challenges the condition of his supervised release requiring him

to register as a sex offender under SORNA. Specifically, he argues that because

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SORNA was not enacted until 2006, and his two sexual offense convictions

occurred before SORNA’s enactment, applying SORNA’s registration

requirements to him violates the Ex Post Facto Clause of the United States

Constitution. According to Sewell, this amounts to unconstitutional retroactive

punishment because it makes the punishment for his two prior sex offenses more

burdensome. 3

       But as Sewell himself admits, this argument is foreclosed by this Court’s

decision in United States v. W.B.H., 664 F.3d 848, 860 (11th Cir. 2011). In that

case, we considered and rejected an ex post facto attack on SORNA’s registration

requirement. Id. Like Sewell, the challenger in W.B.H. had to, as a condition of

his supervised release, register as a sex offender because of a sex offense

conviction prior to SORNA’s enactment. Id. at 851. We rejected that challenge

pursuant to the Supreme Court’s decision in Smith v. Doe, 538 U.S. 84, 123 S. Ct.

1140 (2003). We reasoned that because SORNA was not punitive as applied, the

Ex Post Facto Clause had not been violated. W.B.H., 664 F.3d at 860; see also

Smith, 538 U.S. at 92–94, 123 S. Ct. at 1146–48. Sewell nevertheless argues

W.B.H. was wrongly decided.



       3
         This portion of Sewell’s appeal is not moot. Sewell is serving out his period of
supervision, which includes the registration requirement. Finding that requirement
unconstitutional would alter the condition of his supervised release, providing him with
meaningful relief. See Dawson, 50 F.3d at 886 n.2, Al-Arian, 514 F.3d at 1189. We therefore
have jurisdiction over this portion of Sewell’s appeal.
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       Yet as Sewell admits, W.B.H. binds this Court under the prior precedent

rule. 4 United States v. Archer, 531 F.3d 1347, 1352 (11th Cir. 2008) (“[A] prior

panel’s holding is binding on all subsequent panels unless and until it is overruled

or undermined to the point of abrogation by the Supreme Court or by this court

sitting en banc.”). Thus, we need not consider Sewell’s argument that W.B.H. was

wrongly decided, and affirm this portion of his appeal.

       DISMISSED IN PART, AFFIRMED IN PART.




       4
          We note that Sewell apparently includes this argument to “preserve the issue for review
in case the Supreme Court, or this Court sitting en banc, later reconsiders its precedent.”
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