                   NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                              File Name: 07a0648n.06
                              Filed: September 4, 2007

                                               Case No. 06-3933

                               UNITED STATES COURT OF APPEALS
                                    FOR THE SIXTH CIRCUIT

 UNITED STATES OF AMERICA,                                     )
                                                               )
             Plaintiff-Appellee,                               )
                                                               )        ON APPEAL FROM THE
                    v.                                         )        UNITED STATES DISTRICT
                                                               )        COURT FOR THE NORTHERN
 SHELDON A. GOLDBERG,                                          )        DISTRICT OF OHIO
                                                               )
             Defendant-Appellant.                              )
                                                               )
 _______________________________________                       )
                                                               )
                                                               )

BEFORE: BATCHELDER and COLE, Circuit Judges; PHILLIPS*, District Judge.


         THOMAS W. PHILLIPS, District Judge. Defendant Sheldon Goldberg appeals his

sentence following conviction for conspiracy to commit mail fraud, aiding and abetting mail fraud,

and selling and aiding and abetting the sale of stolen vehicles, two of which offenses are Class C

felonies. Because defendant’s period of incarceration has expired, we conclude that the appeal is

now moot.

         After entering a plea of guilty to conspiracy to commit mail fraud and transporting and selling

falsely reported stolen vehicles, defendant was sentenced to five months of incarceration and five

months of home confinement followed by two years of supervised release. Review of the record


         *
           The Honorable Thomas W . Phillips, United States District Judge for the Eastern District of Tennessee,
sitting by designation.
shows that defendant does not challenge his conviction. Rather, the only aspect of his sentence that

defendant challenges is the imposition of a five month term of imprisonment. The five month

sentence expired on or about January 1, 2007. Consequently, the matter is now moot. See Lane v.

Williams, 455 U.S. 624, 631 (1982). “If a prisoner does not challenge the validity of the conviction

but rather only challenges his sentence or some aspect of it, the request for relief is moot once the

challenged portion of the sentence has expired.” United States v. Manogg, 1993 U.S. App. LEXIS

6980, *2 (6TH Cir. Mar. 26, 1993) (citing Lane, 455 U.S. at 631).

        Moreover, even if the time the defendant served in prison was found to be excessive, that

time cannot be credited to the defendant’s time of supervised release. See United States v. Johnson,

529 U.S. 53, 60 (2000). Therefore, defendant’s period of supervised release would still be two years

and there is no relief which can be granted to him. See U.S.S.G. § 5D1.2(a)(2) (“[I]f a term of

supervised release is ordered, the length of the term shall be: . . . (2) At least two years but not more

than three years for a defendant convicted of a Class C or D felony.”). Because defendant has shown

no injury which can be redressed, his appeal is dismissed as moot.




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