     Case: 14-10846    Document: 00513514867       Page: 1   Date Filed: 05/20/2016




        IN THE UNITED STATES COURT OF APPEALS
                 FOR THE FIFTH CIRCUIT


                                    No. 14-10846                  United States Court of Appeals
                                                                           Fifth Circuit

                                                                         FILED
UNITED STATES OF AMERICA,                                            May 20, 2016
                                                                    Lyle W. Cayce
             Plaintiff - Appellee                                        Clerk

v.

DAVID HEREDIA-HOLGUIN,

             Defendant - Appellant




                 Appeal from the United States District Court
                      for the Northern District of Texas


Before STEWART, Chief Judge, and JOLLY, DAVIS, JONES, SMITH,
DENNIS, CLEMENT, PRADO, OWEN, ELROD, SOUTHWICK, HAYNES,
GRAVES, HIGGINSON, and COSTA, Circuit Judges.

HAYNES, Circuit Judge, joined by STEWART, Chief Judge, and DENNIS,
PRADO, OWEN, ELROD, SOUTHWICK, GRAVES, and COSTA, Circuit
Judges:

      In this case, we address whether the deportation of a defendant renders
that defendant’s appeal of his term of supervised release moot. We hold that
such deportation, by itself, does not render the appeal moot. We thus return
this case to the panel for final disposition.
                            I. Facts and Proceedings
      After pleading guilty to illegal reentry after deportation pursuant to a
plea agreement, David Heredia-Holguin received a sentence of twelve months
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                                      No. 14-10846
of imprisonment and three years of supervised release. The term of supervised
release contains two special conditions: (1) he cannot illegally reenter the
United States; and (2) he cannot consume alcohol or other intoxicants.
Heredia-Holguin did not object to any part of his sentence.
       Heredia-Holguin appealed, but before he could file his initial brief, he
completed his prison sentence and was deported.                   Accordingly, Heredia-
Holguin conceded that his appeal was moot under the existing case of United
States v. Rosenbaum-Alanis, 483 F.3d 381, 383 (5th Cir. 2007), and argued that
his term of supervised release should be equitably vacated. In response, the
government moved to dismiss the appeal as moot.
       A panel of this court ordered supplemental briefing to address, among
other things, whether Heredia-Holguin’s appeal of his unexpired term of
supervised release was mooted by his release from prison and deportation from
the United States. In response, while Heredia-Holguin continued to press for
equitable vacatur of his sentence, he also argued that this court should
reconsider en banc the holding of Rosenbaum-Alanis.
       In its decision, a panel of this court noted that “[t]wo Fifth Circuit
decisions address the question of whether deportation moots a sentencing
appeal. These decisions, however, arrived at opposite conclusions.” United
States v. Heredia-Holguin, 789 F.3d 625, 627 (5th Cir.), reh’g en banc granted,
803 F.3d 745 (5th Cir. 2015). 1 The panel further analyzed the two Fifth Circuit
opinions—United States v. Lares-Meraz, 452 F.3d 352 (5th Cir. 2006), and



       1 In Lares-Meraz, a panel of this court determined that the sentencing appeal of a
deported defendant was not moot because the defendant “remains subject to a term of
supervised release, an element of the overall sentence.” United States v. Lares-Meraz, 452
F.3d 352, 355 (5th Cir. 2006). By contrast, the following year, another panel of this court
determined an appeal of a sentence in a similar situation was moot because the defendant
was “legally unable, without permission of the Attorney General, to reenter the United States
to be present for a resentencing proceeding as required by Rule 43, [and thus] there [was] no
relief we [could] grant him.” Rosenbaum-Alanis, 483 F.3d at 383.
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                                 No. 14-10846
Rosenbaum-Alanis—and noted that it “ha[d] difficulty seeing the distinction
that our court tried to draw in Rosenbaum–Alanis when it concluded that
Lares–Meraz did not control.”       Heredia-Holguin, 789 F.3d at 628 n.2.
Regardless, the panel declined to resolve any perceived inconsistencies,
concluding that Heredia-Holguin was seeking only equitable vacatur of his
term of supervised release. Id. at 628. The panel declined to vacate the
remainder of Heredia-Holguin’s sentence, determining equitable vacatur was
not warranted on the facts of the case. Id. at 628–29.
      Heredia-Holguin petitioned for rehearing en banc, seeking review of the
following issues:
              1. When an alien defendant is deported upon
              completing his term of imprisonment, but remains
              subject to a term of supervised release, is his
              sentencing appeal moot?
              2. If an alien defendant’s sentencing appeal is
              rendered moot by his involuntary deportation, is the
              alien entitled to have his sentence—or at least the
              remaining term of supervised release—vacated under
              the doctrine of equitable vacatur?
We granted rehearing, and because we answer the first question in the
negative, we need not address the second.
                                 II. Discussion
A. Mootness
      “Whether an appeal is moot is a jurisdictional matter, since it implicates
the Article III requirement that there be a live case or controversy.” Bailey v.
Southerland, 821 F.2d 277, 278 (5th Cir. 1987). Under Article III’s case-or-
controversy requirement, “[t]o invoke the jurisdiction of a federal court, a
litigant must have suffered, or be threatened with, an actual injury traceable
to the defendant and likely to be redressed by a favorable judicial decision.”
Lewis v. Cont’l Bank Corp., 494 U.S. 472, 477 (1990). “This case-or-controversy
requirement subsists through all stages of federal judicial proceedings, trial
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and appellate. . . . The parties must continue to have a personal stake in the
outcome of the lawsuit.” Spencer v. Kemna, 523 U.S. 1, 7 (1998) (quoting Lewis,
494 U.S. at 477–78).
       “A case becomes moot only when it is impossible for a court to grant any
effectual relief whatever to the prevailing party.” Knox v. Serv. Emps. Int’l
Union, Local 1000, 132 S. Ct. 2277, 2287 (2012) (quoting City of Erie v. Pap’s
A.M., 529 U.S. 277, 287 (2000)). “[A]s long as the parties have a concrete
interest, however small, in the outcome of the litigation, the case is not moot.”
Id. (alteration in original) (quoting Ellis v. Bhd. of Ry., Airline & S.S. Clerks,
466 U.S. 435, 442 (1984)). With these general mootness principles in mind, we
turn to the case before us.
       On the face of his appeal, Heredia-Holguin is claiming an error as to an
aspect of his sentence—the term of supervised release—that is still in effect.
Recent amendments to the sentencing guidelines state that “ordinarily” a term
of supervised release will not be ordered for a deportable alien, and the
application notes provide that a district court may order supervised release in
such a scenario for “deterrence and protection” based on the facts of the case.
U.S. SENTENCING GUIDELINES MANUAL (U.S.S.G.) § 5D1.1 & cmt. n.5. (U.S.
SENTENCING COMM’N 2015). 2 Thus, the Sentencing Guidelines anticipate that



       2 The provision discouraging the imposition of supervised release where the defendant
is a deportable alien was added in 2011 with the following comments:
       [S]upervised release is imposed in more than 91 percent of cases in which the
       defendant is a non-citizen. The Commission determined that such a high rate
       of imposition of supervised release for non-citizen offenders is unnecessary
       because “recent changes in our immigration law have made removal nearly an
       automatic result for a broad class of noncitizen offenders.” Padilla v. Kentucky,
       130 S. Ct. 1473, 1481 (2010); see also id. at 1478 (“[D]eportation or
       removal . . . is now virtually inevitable for a vast number of noncitizens
       convicted of crimes.”).
U.S.S.G. App. C, am. 756 (citation omitted). The application note to § 5D1.1 provides in part
that:
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                                      No. 14-10846
such a term of supervised release could have a “deterrent” effect, which
supports the conclusion that Heredia-Holguin has an interest, “however
small,” in challenging it. As the Sentencing Guidelines make clear, a term of
supervised release imposed on a defendant subject to deportation must have a
meaning. It cannot be imposed as a casual or routine formality. If supervised
release was imposed as a measure of deterrence, to the extent the supervised
release was improper, the defendant is being improperly deterred. Courts have
determined that deterrence is sufficient to allege an injury for the purposes of
standing in other contexts. See, e.g., Doran v. 7-Eleven, Inc., 524 F.3d 1034,
1041 (9th Cir. 2008) (“Allegations that a plaintiff has visited a public
accommodation on a prior occasion and is currently deterred from visiting that
accommodation by accessibility barriers establish that a plaintiff’s injury is
actual or imminent.”); Clapper v. Amnesty Int’l USA, 133 S. Ct. 1138, 1152
(2013) (discussing how a statute’s chilling effect on speech could create a
justiciable controversy, but finding on the facts of the case that the chilling
effect was too remote); cf. Friends of the Earth, Inc. v. Laidlaw Envtl. Servs.
(TOC), Inc., 528 U.S. 167, 186 (2000) (“To the extent that [civil penalties]
encourage defendants to discontinue current violations and deter them from
committing future ones, they afford redress to citizen plaintiffs who are injured
or threatened with injury as a consequence of ongoing unlawful conduct.”). It
makes little sense to continue to allow a district court to impose a term of




       Unless such a defendant legally returns to the United States, supervised
       release is unnecessary. If such a defendant illegally returns to the United
       States, the need to afford adequate deterrence and protect the public ordinarily
       is adequately served by a new prosecution. The court should, however,
       consider imposing a term of supervised release on such a defendant if the court
       determines it would provide an added measure of deterrence and protection
       based on the facts and circumstances of a particular case.
U.S.S.G. § 5D1.1 cmt. n.5.
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                                  No. 14-10846
supervised release on a deportable alien but prevent him from being able to
challenge that term of supervised release.
       The closest Supreme Court case on point supports a conclusion that
deportation of the defendant does not moot the challenge to his unexpired term
of supervised release. See United States v. Campos-Serrano, 404 U.S. 293
(1971). While in Mexico, Heredia-Holguin is subject to at least one of the terms
of his supervised release—that he not enter the United States illegally.
Although such entry is already prohibited by law, the Court in Campos-
Serrano held that a since-deported defendant’s appeal was not moot because
the conditions of his probation were “that he return to Mexico and not return
to the United States illegally[,] . . . [and s]hould he violate those conditions [by
illegally reentering], he will be subject to imprisonment under his continuing
criminal sentence.” Id. at 294 n.2. Although it is true that Campos-Serrano
was challenging the conviction itself, which has sufficient collateral
consequences to allow an appeal even when the sentence has expired, the Court
made no mention of collateral consequences. Rather, the dispositive fact was
that he was “still under the sentence.” Id. Nor was the probation sentence
itself, which included a condition of leaving the country, the only basis for the
defendant being outside the United States. A “previous order” of deportation
also required his removal. Id.
       Further, even though illegal reentry is already prohibited by law, as a
condition of supervised release, it subjects him to the procedures applicable to
revoking supervised release, which among other diminished rights only
require proof by a preponderance of the evidence, as well as the potential of a
lengthier sentence. See 18 U.S.C. § 3583(e)(3); Lane v. Williams, 455 U.S. 624,
631 (1982); United States v. Hinson, 429 F.3d 114, 118 (5th Cir. 2005). This
fact alone gives Heredia-Holguin a concrete injury. Moreover, other violations
of supervised release terms that also constitute standalone crimes are
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                                       No. 14-10846
analyzed on the merits, rather than seen as nonjusticiable. See United States
v. Asuncion-Pimental, 290 F.3d 91, 94–95 (2d Cir. 2002) (possession of a
firearm by a felon); United States v. Morey, 120 F.3d 142, 143 (8th Cir. 1997)
(same).
       In opposition, the Government urges us to follow the approach of other
circuits that hold that a defendant’s deportation renders moot the defendant’s
appeal of his sentence. See, e.g., United States v. Mercurris, 192 F.3d 290, 293–
95 (2d Cir. 1999); United States v. Vera-Flores, 496 F.3d 1177, 1182 (10th Cir.
2007). These cases all predate the amendments to the Sentencing Guidelines
set forth above and, therefore, do not address the deterrence issue. 3 They rely
upon the premise that the supervised release terms have no effect on the
defendant where he is no longer in the United States. See, e.g., Vera-Flores,
496 F.3d at 1181 (“[The defendant’s] liberty is in no way affected by any
sentencing error allegedly committed by the district court because [the
defendant’s] deportation has eliminated all practical consequences associated
with serving a term of supervised release.”). But even in Mexico, Heredia-
Holguin is still subject to at least some of the conditions imposed. See Campos-
Serrano, 404 U.S. at 294 n.2; United States v. Brown, 54 F.3d 234, 238 (5th
Cir. 1995) (“[D]eportation does not extinguish a term of supervised release.”).
If he violates these conditions, he is subject to imprisonment.                  18 U.S.C.



       3 Another distinction is that these cases largely involve situations in which a
defendant had completed his term of imprisonment and been deported, yet was still trying to
challenge the term of imprisonment on the ground that the term of supervised release had
not yet expired. See, e.g., United States v. Frook, 616 F.3d 773, 778 (8th Cir. 2010) (finding
moot an appeal of a two-level enhancement for obstruction that influenced the term of
imprisonment); Vera-Flores, 496 F.3d at 1179–82 (finding moot various challenges to the
Guidelines range); United States v. Okereke, 307 F.3d 117, 121 (3d Cir. 2002) (finding moot
an appeal on Apprendi grounds of the drug quantity finding that influenced the term of
imprisonment); Mercurris, 192 F.3d at 292, 294 (finding moot an appeal of an aggravated
felony enhancement that increased the Guidelines range governing that term of
imprisonment).
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                                       No. 14-10846
§ 3583(e)(3); see also Campos-Serrano, 404 U.S. at 294 n.2.                    Accordingly,
Heredia-Holguin has a personal stake in the outcome because the terms of
supervised release still apply to him.             This court, therefore, could grant
Heredia-Holguin relief if it vacated or ordered modification of the term of
supervised release. 4
       We conclude that our court has the authority to grant relief as long as
the term of the supervised release has not expired. 5 The judgment is still
extant, and Heredia-Holguin is still living under it. We hold that that where
a defendant has been deported, his appeal of a term of an existing supervised
release is not mooted solely by that deportation.



       4  Also sometimes raised in support of a finding of mootness is the argument that a
deported defendant cannot appear at a resentencing and therefore cannot obtain relief. This
is an issue for the district court for another day. See United States v. Reyes-Sanchez, 509
F.3d 837, 839 (7th Cir. 2007) (“[T]he Judicial Branch should stand ready to impose a lawful
sentence as soon as the defendant is available for sentencing, or is deemed voluntarily absent
for the purpose of Rule 43(c)(1)(B).”). Also, even were we to assume the defendant physically
could not appear, Rule 43 explicitly contemplates a defendant’s voluntary waiver of the right
to be present for sentencing. See FED. R. CRIM. P. 43(c)(1)(B). Moreover, under Rule
32.1(c)(2), a defendant can waive the requirement of a hearing for a modification of
supervised release. FED. R. CRIM. P. 32.1(c)(2)(A); see United States v. Spencer, 609 F. App’x
781, 784 (5th Cir. 2015) (modifying a condition of supervised release without the need for
resentencing (citing 28 U.S.C. § 2106)). A hearing is also not required for a modification of
supervised release where “the relief sought is favorable to the [defendant]” and “an attorney
for the government has received notice of the relief sought, has had a reasonable opportunity
to object, and has not done so.” FED. R. CRIM. P. 32.1(c)(2)(B), (C). Accordingly, the
hypothetical potential absence of the defendant cannot form the basis of a general rule of
mootness in all cases. See Chafin v. Chafin, 133 S. Ct. 1017, 1024 (2013) (rejecting the
argument that a Hague Convention appeal was moot where the daughter had returned to
Scotland and “the District Court lack[ed] the authority to issue a re-return order,” because
“that argument—which goes to the meaning of the Convention and the legal availability of a
certain kind of relief—confuses mootness with the merits”); Powell v. McCormack, 395 U.S.
486, 500 (1969) (rejecting the argument that a case was moot where a backpay claim was
brought in the wrong court and could not result in relief because “it confuses mootness with
whether [the plaintiff] has established a right to recover”).
       5 The Sixth Circuit has reached the same conclusion. In United States v. Solano-
Rosales, 781 F.3d 345, 355 (6th Cir. 2015), the Sixth Circuit held that a deported defendant’s
sentencing appeal was not moot because the court retained discretion to modify the
defendant’s supervised release term.
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                                       No. 14-10846
B. Equitable Vacatur
       Having determined that Heredia-Holguin’s appeal is not mooted by his
deportation, we need not address whether equitable vacatur is appropriate.


       We remand to the panel to consider any other issues remaining in
Heredia-Holguin’s appeal of his term of supervised release. 6




       6 In this regard, we note that any deficiencies in Heredia-Holguin’s briefing of claimed
errors in his sentence constitute “a prudential construct that requires the exercise of
discretion,” which we leave to the panel. United States v. Miranda, 248 F.3d 434, 443 (5th
Cir. 2001).
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                                       No. 14-10846
STEPHEN A. HIGGINSON, Circuit Judge, joined by JOLLY, DAVIS, JONES,
SMITH, and CLEMENT, Circuit Judges, dissenting:
       Heredia-Holguin, not a United States citizen, and no longer in this
country, does not contest his conviction or deportation. Convicted of illegally
reentering the country after deportation—and having served his one year
prison sentence—Heredia-Holguin has been deported a second time to Mexico,
where he is not being supervised by the United States government. See 18
U.S.C. § 3624(e). He makes no suggestion that he is abiding by any post-
imprisonment release condition imposed on him by the criminal sentence he
did not object to, such as, for example, the condition that he refrain from
alcohol. Cf. United States v. Campos-Serrano, 404 U.S. 293, 294 n.2 (1971)
(overturning conviction and sentence because defendant “is living under those
restraints today”). Even were we to perceive plain error as to supervision that
is not occurring, Heredia-Holguin neither could nor presumably would appear
for resentencing, which might be unfavorable in outcome. See United States v.
Williams, 475 F.3d 468, 479 n.6 (2d Cir. 2007); Fed. R. Crim. P. 43(a)(3). See
generally United States v. Triestman, 178 F.3d 624, 630-31 (2d Cir. 1999)
(Sotomayor, J.). In such circumstances, where Heredia-Holguin cannot show
an actual injury likely to be redressed by a favorable judicial decision, I would
follow our precedent, 1 consistent with a near consensus of our sister courts, 2
and dismiss his appeal. See Spencer v. Kemna, 523 U.S. 1, 14-16 (1998); see



       1  United States v. Rosenbaum-Alanis, 483 F.3d 381, 383 (5th Cir. 2007) (distinguishing
United States v. Larez-Meraz, 452 F.3d 352 (5th Cir. 2006)). Cf. United States v. Seguara-
Resendez, 515 F. App’x 316, 319 (5th Cir. 2013) (dismissing “for lack of appellate
jurisdiction”).
        2 See United States v. Frook, 616 F.3d 773, 778 (8th Cir. 2010); United States v. Vera-

Flores, 496 F.3d 1177, 1182 (10th Cir. 2007); United States v. Mercurris, 192 F.3d 290, 293–
95 (2d Cir. 1999); United States v. DeLeon, 444 F.3d 41, 55–56 (1st Cir. 2006); Okereke v.
United States, 307 F.3d 117, 121 (3d Cir. 2002). But see United States v. Solano-Rosales, 781
F.3d 345, 350, 355 (6th Cir. 2015).
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also Church of Scientology of Cal. v. United States, 506 U.S. 9, 12 (1992) (“[I]f
an event occurs while a case is pending on appeal that makes it impossible for
the court to grant any effectual relief whatever to a prevailing party, the appeal
must be dismissed.” (internal quotation marks omitted)). Following the Second
Circuit’s pragmatic approach, see Seijas v. Republic of Argentina, 391 F. App’x
901, 903 (2d Cir. 2010) 3; 28 U.S.C. § 2106; 5th Cir. R. 42.4, this dismissal would
be without prejudice: If Heredia-Holguin seeks to reenter the United States,
cognizant of his supervision conditions, he would be required to inform the
court in writing of his intention to reinstate this appeal challenging “restraints
imposed by the District Court pursuant to his conviction.” Campos-Serrano,
404 U.S. at 294 n.2. Failing such notification prior to re-entry, the dismissal
would be with prejudice.




       3 Compare Mercurris, 192 F.3d at 294 (dismissing appeal), with United States v.
Montez-Gaviria, 163 F.3d 697, 700 (2d Cir. 1998) (exercising discretion to decline to dismiss
appeal), and with United States v. Suleiman, 208 F.3d 32, 41 (2d Cir. 2000) (affirming
sentence without prejudice to subsequent motion to modify).
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