United States v. Timothy Jevon Sewell ( 2017 )


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  •            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    [DO NOT PUBLISH]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:
    Case: 17-10637      Date Filed: 10/20/2017     Page: 2 of 7
    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/.
    2
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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.
    3
    Case: 17-10637     Date Filed: 10/20/2017    Page: 4 of 7
    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
    4
    Case: 17-10637     Date Filed: 10/20/2017   Page: 5 
    of 7 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
    5
    Case: 17-10637      Date Filed: 10/20/2017      Page: 6 of 7
    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.
    6
    Case: 17-10637        Date Filed: 10/20/2017      Page: 7 of 7
    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.”
    7