                                                                           FILED
                           NOT FOR PUBLICATION
                                                                           NOV 20 2015
                    UNITED STATES COURT OF APPEALS                      MOLLY C. DWYER, CLERK
                                                                         U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                        No. 14-10373

              Plaintiff - Appellant,             D.C. No. 2:09-cr-00303-JCM-
                                                 VCF-1
 v.

ERIC LEON CHRISTIAN,                             MEMORANDUM*

              Defendant - Appellee.


                    Appeal from the United States District Court
                             for the District of Nevada
                     James C. Mahan, District Judge, Presiding

                          Submitted November 18, 2015**
                             San Francisco, California

Before: O’SCANNLAIN, FERNANDEZ, and M. SMITH, Circuit Judges.

      The United States appeals the district court’s order on remand dismissing as

moot a case in which Eric Leon Christian was convicted of two counts of making a

threat through interstate communications in violation of 18 U.S.C. § 975(c). This


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
        **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
court previously held that the district court applied the wrong legal standard in

precluding an expert’s testimony, vacated the conviction, and remanded for a new

trial. On remand, the district court dismissed the case as moot on the ground that

Christian had completed serving his sentence and he had been discharged from

supervised release.

      We have jurisdiction under 18 U.S.C. § 3731 and review the question of

mootness de novo, Alvarez v. Hill, 667 F.3d 1061, 1063 (9th Cir. 2012). We

reverse and remand.

                                           I

      A criminal case is not moot simply because a defendant is no longer

incarcerated. In Spencer v. Kemna, the Supreme Court explained that “[o]nce the

convict’s sentence has expired, . . . some concrete and continuing injury other than

the now-ended incarceration or parole—some ‘collateral consequence’ of the

conviction—must exist if the suit is to be maintained.” 523 U.S. 1, 7 (1998).1

      “When the defendant challenges his underlying conviction, [the Supreme]

Court’s cases have long presumed the existence of collateral consequences.”

United States v. Juvenile Male, 131 S. Ct. 2860, 2864 (2011) (emphasis omitted).

      1
        The Court held that, unlike a criminal conviction, a wrongful parole
violation does not carry a presumption of continuing collateral consequences once
the sentence has been fully served. Kemna, 523 U.S. at 14.

                                          2
In Sibron v. New York, the Court stated that it had “abandoned all inquiry into the

actual existence of specific collateral consequences and in effect presumed that

they existed.” 392 U.S. 40, 55 (1968) (citing Pollard v. United States, 352 U.S.

354 (1957)). “Thereafter, and in summary fashion, [the Court] proceeded to accept

the most generalized and hypothetical of consequences as sufficient to avoid

mootness in challenges to conviction.” Kemna, 523 U.S. at 10 (citing Benton v.

Maryland, 395 U.S. 784, 790–91 (1969); Pennsylvania v. Mimms, 434 U.S. 106,

108 n.3 (1977) (per curiam); Minnesota v. Dickerson, 508 U.S. 366 (1993)).2

      The government may invoke the possibility of imposing collateral legal

consequences to show that a case is not moot. In Pennsylvania v. Mimms,

Pennsylvania sought review of the state supreme court’s decision reversing the

defendant’s conviction for carrying a concealed deadly weapon and a firearm

without a license. In the defendant’s opposition to Pennsylvania’s petition for a

writ of certiorari, he argued that the case was moot because he had already

completed serving his sentence. 434 U.S. at 108 n.3. The Supreme Court rejected

that argument:

      2
        The Kemna Court indicated that the presumption is a reasonable one. “In
the context of criminal conviction, the presumption of significant collateral
consequences is likely to comport with reality. As we said in Sibron, it is an
‘obvious fact of life that most criminal convictions do in fact entail adverse
collateral legal consequences.’” Id. at 12 (quoting Sibron, 392 U.S. at 55).

                                          3
      [T]he possibility of a criminal defendant’s suffering “collateral legal
      consequences” from a sentence already served permits him to have his
      claims reviewed here on the merits. If the prospect of the State’s visiting
      such collateral consequences on a criminal defendant who has served his
      sentence is a sufficient burden as to enable him to seek reversal of a decision
      affirming his conviction, the prospect of the State’s inability to impose such
      a burden following a reversal of the conviction of a criminal defendant in its
      own courts must likewise be sufficient to enable the State to obtain review of
      its claims on the merits here.

Id. The Court then made clear that the conviction’s impact on bail, sentencing, and

probation considerations in any future criminal proceedings constituted sufficient

collateral legal consequences to render the case not moot:

      In any future state criminal proceedings against respondent, this conviction
      may be relevant to setting bail and length of sentence, and to the availability
      of probation. In view of the fact that respondent, having fully served his
      state sentence, is presently incarcerated in the federal penitentiary at
      Lewisburg, Pa., we cannot say that such considerations are unduly
      speculative even if a determination of mootness depended on a case-by-case
      analysis.

Id. (citations omitted).

      Here, Christian argues that he would not suffer any collateral legal

consequences because he is a “defendant with two prior federal felony convictions

and for whom a potential additional federal felony conviction would, at best, serve

only a theoretical, abstract purpose.” However, as the government correctly

argues, a conviction in this case would add at least three criminal history points to

Christian’s sentencing guidelines calculation for any future federal conviction—a


                                           4
clear collateral consequence. See U.S. Sentencing Guidelines Manual § 4A1.1(a)

(U.S. Sentencing Comm’n 2015) (“Add 3 points for each prior sentence of

imprisonment exceeding one year and one month.”). Because Christian already

has two felony convictions (and the third conviction vacated in this case), it is not

“unduly speculative” to conclude that he might be prosecuted once again, and a

conviction in this case would be considered as part of his sentencing in that future

prosecution.

      Therefore, we hold that this case is not moot.

                                          II

      Christian also argues that the court could affirm on the alternative basis that

the dismissal was a proper exercise of the trial court’s supervisory authority.

However, the district court clearly did not in fact dismiss the case as an exercise of

its supervisory authority. The district court’s order addressed solely the issue of

mootness, and it concluded “IT IS HEREBY ORDERED, ADJUDGED AND

DECREED that this matter is dismissed as moot.” (emphasis added).

      Moreover, there is no reason to affirm on the basis that the district court

could have possibly exercised such authority. “[B]ecause dismissing an indictment

with prejudice encroaches on the prosecutor’s charging authority, this sanction

may be permitted only in cases of flagrant prosecutorial misconduct.” United


                                           5
States v. Chapman, 524 F.3d 1073, 1085 (9th Cir. 2008) (internal quotation marks

omitted). Here, there was no prosecutorial misconduct warranting dismissal.

      Thus, we decline to affirm the dismissal as an exercise of the district court’s

supervisory authority.

                                         III

      For the foregoing reasons, the district court’s order is REVERSED, and this

case is REMANDED for retrial.




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