                                                                           FILED
                                                               United States Court of Appeals
                                                                       Tenth Circuit

                    UNITED STATES COURT OF APPEALS                      July 11, 2008
                                                                   Elisabeth A. Shumaker
                                 TENTH CIRCUIT                         Clerk of Court


 UNITED STATES OF AMERICA,

               Plaintiff-Appellee,                       No. 07-3201
          v.                                             (D. of Kan.)
 WAALEE D. FAJRI,                             (D.C. No. 02-CR-20065-KHV-1)

               Defendant-Appellant.


                           ORDER AND JUDGMENT *


Before LUCERO, TYMKOVICH, and HOLMES, Circuit Judges. **


      Waalee Fajri appeals a sentence for violating the conditions of his

supervised release. He argues the sentence was not procedurally reasonable

because the district court incorrectly applied a statute mandating revocation of

parole when he failed drug tests. The government argues the appeal is moot




      *
         This order and judgment is not binding precedent except under the
doctrines of law of the case, res judicata and collateral estoppel. It may be cited,
however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th
Cir. R. 32.1.
      **
         After examining the briefs and the appellate record, this three-judge
panel has determined unanimously that oral argument would not be of material
assistance in the determination of this appeal. See Fed. R. App. P. 34(a); 10th
Cir. R. 34.1(G). The cause is therefore ordered submitted without oral argument.
because Fajri has already completed his term of imprisonment for the sentence

being appealed.

      Having jurisdiction under 28 U.S.C. § 1291, we find jurisdiction and

AFFIRM the sentence imposed by the district court.

                                  I. Background

      Fajri was previously convicted of bank robbery. After serving his prison

sentence, he was completing a three-year term of supervised release, which

started on August 25, 2006. In January and February 2007, Fajri failed three drug

tests, missed some counseling sessions, and skipped several drug tests. Based on

his probation officer’s request, Fajri was arrested for violating the terms of his

supervised release. At the subsequent hearing, Fajri admitted to all the alleged

violations of his supervised release. He also submitted material aimed at

mitigating his violations by explaining why he violated his release.

      The district court sentenced Fajri to six months imprisonment followed by

thirty months of supervised release for violating the conditions of his release.

When sentencing Fajri the district court relied on 18 U.S.C. § 3583(g)(4)’s

mandatory incarceration provision, which requires a six-month imprisonment term

for defendants who test positive for drugs “more than 3 times” over a one-year

period. 18 U.S.C. § 3583(g)(4). The district court repeatedly noted the

mandatory nature of the statute, and found that no exception applied. Fajri timely

appeals this sentence.

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                                   II. Discussion

      Because Fajri has already served his six-month term of imprisonment that

is being appealed, we must first determine if we have jurisdiction to hear this

appeal. Only if this case is not moot will we reach the merits of the appeal.

      A. Mootness

      The government filed a motion to dismiss appeal for mootness, contending

that Fajri had completed the six-month term of imprisonment resulting from his

revoked supervised release. Article III of the Constitution limits us to live

controversies that exist at all stages of litigation, including appellate review.

Moongate Water Co. v. Dona Ana Mut. Domestic Water Consumers Ass’n, 420

F.3d 1082, 1088 (10th Cir. 2005). Before we can address the merits of this appeal

we must determine if we have jurisdiction. When “intervening acts destroy a

party’s legally cognizable interest” in the lawsuit, the federal courts are deprived

of jurisdiction. Id. “Without a live, concrete controversy, we lack jurisdiction to

consider claims no matter how meritorious.” Mink v. Suthers, 482 F.3d 1244,

1253 (10th Cir. 2007).

      In particular, when a defendant completes the sentence being appealed prior

to the appellate court decision, “the court must determine whether sufficient

collateral consequences flow from the underlying judgment and the completed

sentence to save the appeal from mootness.” United States v. Meyers, 200 F.3d

715, 718 (10th Cir. 2000).

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      Applying that standard, we find that Fajri has alleged sufficient collateral

consequences to his sentence being appealed. First, we note he is presently

serving a sentence because his “subsequent period of supervised release was

recently revoked again on February 5, 2008, for absconding from a halfway

house,” Aple. Mootness Mot. at 2, where he was serving part of the sentence

being appealed in this case. If Fajri’s underlying sentence were in error, then a

violation of that sentence could be called into question.

      Furthermore, Fajri’s term of supervised release has not been completed

(even if he were not incarcerated for absconding), which is also a collateral

consequence to his conviction for violating supervised release. We therefore

conclude a live controversy exists in this case. Having satisfied ourselves that we

have jurisdiction, we address the merits of Fajri’s appeal. 1

      B. Merits

      Fajri argues his sentence should be vacated because it is procedurally

unreasonable. The district court justified the sentence it imposed on Fajri by

      1
           We note in passing that while some appeals become moot when the
defendant completes a term of imprisonment, see, e.g., Meyers, 200 F.3d at 723, it
is not unusual for defendants who have completed a term of imprisonment to have
sufficient collateral consequences to defeat mootness. See e.g., United States v.
Vera-Flores, 496 F.3d 1177, 1180 (10th Cir. 2007) (“In this circuit, under
ordinary circumstances, a defendant who has served his term of imprisonment but
is still serving a term of supervised release may challenge his sentence if his
unexpired term of supervised release could be reduced or eliminated by a
favorable appellate ruling.”) (internal quotation omitted); United States v.
Hernandez-Garauno, 460 F.3d 1287 (10th Cir. 2006) (finding appeal not moot
even though defendant had completed term of imprisonment).

                                          -4-
citing 18 U.S.C. § 3583(g)(4), which requires a mandatory revocation of

supervised release for failing more than three positive drug tests in a one-year

period. As the government admits, Fajri failed only three tests. At sentencing,

however, Fajri never objected to the district court’s application of 18 U.S.C.

§ 3583(g)(4) on account of the positive drug tests.

      Because Fajri did not object at trial, we review under the familiar plain

error standard. “Plain error occurs when there is (i) error, (ii) that is plain, which

(iii) affects the defendant’s substantial rights, and which (iv) seriously affects the

fairness, integrity, or public reputation of judicial proceedings.” United States v.

Ruiz-Terrazas, 477 F.3d 1196, 1199 (10th Cir. 2007). Under the fourth prong,

when the error is non-constitutional, as in this case, a defendant must make a

“demanding” showing that allowing the error to stand would be “particularly

egregious” and would constitute a “miscarriage of justice.” United States v.

Gonzalez-Huerta, 403 F.3d 727, 736 (10th Cir. 2005) (en banc) (internal

quotations omitted); see also United States v. Dowlin, 408 F.3d 647, 671 (10th

Cir. 2005); United States v. Trujillo-Terrazas, 405 F.3d 814, 820 (10th Cir. 2005).

      Fajri fails to persuade us that this error is particularly egregious and would

constitute a miscarriage of justice. See Gonzalez-Huerta, 403 F.3d at 736. In this

case Fajri stipulated to all the violations of his supervised release, leaving no

doubt that he did in fact violate the conditions of his supervised release. The

sentencing guidelines range for his violation was six to twelve months—even

                                          -5-
without the mandatory statute, and is therefore presumptively reasonable. Fajri

does not make any argument explaining why the district court would have granted

him a variance without the mandatory statute. The record shows, to the contrary,

that the district court judge rejected Fajri’s mitigation arguments, making

particular note of his resistance to drug treatment programs.

      In these circumstances, we cannot conclude that the error was particularly

egregious, or resulted in a fundamental miscarriage of justice. Accordingly, we

decline to vacate the sentence under the standards of plain error.

                                  III. Conclusion

      For the foregoing reasons, we AFFIRM Fajri’s sentence, and deny

Appellee’s Motion to Dismiss Appeal for Mootness.

                                               Entered for the Court,

                                               Timothy M. Tymkovich
                                               Circuit Judge




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