United States v. Glen Joseph ( 2019 )

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_____________
No. 18-2673
_____________
UNITED STATES OF AMERICA
v.
GLEN JOSEPH,
Appellant
On Appeal from the United States District Court
for the Eastern District of Pennsylvania
District Court No. 5-14-cr-00621-001
District Judge: The Honorable Jeffrey L. Schmehl
Submitted Pursuant to Third Circuit L.A.R. 34.1(a)
September 25, 2019
Before: SMITH, Chief Judge, McKEE, and AMBRO, Circuit Judges
(Filed: September 26, 2019)
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OPINION*
_____________________
*
This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does
not constitute binding precedent.
SMITH, Chief Judge.
Defendant Glen Joseph challenges the sentence he received following his
conviction of various offenses via jury trial. Specifically, Joseph argues that the
District Court failed to adequately consider a future state parole sentence resulting
from the same underlying conduct and failed to give Joseph an acceptance of
responsibility adjustment to which he was entitled. BOP records indicate that Joseph
was released from prison on May 28, 2019.
As a threshold matter, we must address whether we have jurisdiction to
adjudicate this appeal. See United States v. Grape, 549 F.3d 591, 597 (3d Cir. 2008).
Where a criminal defendant is challenging a sentence that he has already served in
its entirety, he generally must prove that he is suffering a continuing injury in order
to avoid mootness. See United States v. Kissinger, 309 F.3d 179, 181 (3d Cir. 2002).
In some instances, a defendant may be able to establish continuing jurisdiction where
he is serving a term of supervised release and it is likely that the District Court would
credit time overserved in prison against the term of supervised release. See United
States v. Cottman, 142 F.3d 160, 165 (3d Cir. 1998). As to this option, however, the
Supreme Court has since clarified that a term of supervised release is separate from
a term of incarceration and should not be reduced based only on the fact a defendant
overserved in prison. United States v. Johnson, 529 U.S. 53, 60 (2000). Following
Johnson, our Court therefore held that it must be “likely” that the sentencing court
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would reduce the defendant’s term of supervised release in order for there to be a
live case or controversy after a defendant has been released. Burkey v. Marberry,
556 F.3d 142, 149–50 (3d Cir. 2009).
In supplemental briefing addressing the question of jurisdiction, Joseph
identified no collateral consequences stemming from the alleged sentencing error.
Instead, Joseph argues only that “if he prevails on his appeal and his case is
remanded for resentencing, he may receive a credit against his term of supervised
release for the excess term of imprisonment to which he was subjected.” Suppl. Br.
4. In making this argument, Joseph relies on United States v. Jackson, 523 F.3d 234,
241 (3d Cir. 2008). In Jackson, however, the defendant was serving a term of
supervised release and on appeal was challenging the length of that term of
supervised release. Id. at 242 (“Since Jackson is currently serving a term of
supervised release, and because her challenge is to whether that term of release is
reasonable, the issues of mootness and jurisdiction . . . do not arise.”). Thus, the
reasoning in Jackson is inapposite. See Burkey v. Marberry, 556 F.3d 142, 148 (3d
Cir. 2009) (“In Jackson, we held that collateral consequences are presumed where
the appellant was still serving a term of supervised release and her challenge was to
the reasonableness of the supervised release term. Where, however, the appellant is
attacking a sentence that has already been served, collateral consequences will not
be presumed, but must be proven.” (internal citation omitted)).
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Here, we see no reason to conclude the District Court would be likely to
reduce the supervised release sentence it imposed a year ago, nor did Joseph suggest
any basis for such a conclusion. Indeed, he points to nothing more than a speculative
chance that the District Court might reduce his supervised release term. Under
Burkey, this is far too thin a basis for the exercise of appellate jurisdiction. Burkey,
556 F.3d at 149 (“The possibility that the sentencing court will use its discretion to
modify the length of Burkey’s term of supervised release . . . is so speculative that
any decision on the merits . . . would be merely advisory.”).
Nor could Joseph provide anything more than speculation, as the record
indicates it is unlikely that the District Court would reduce Joseph’s term of
supervised release. He faced a supervised release range of one to three years, and
the District Court chose to impose the high end of that range. The independent
import of the supervised release sentence, separate and apart from the term of
incarceration, is demonstrated by the special conditions of supervised release
imposed by the District Court, which include participation in a mental health
program, among other things. See United States v. Johnson, 529 U.S. 53, 60 (2000)
(“In the instant case, the transition assistance ordered by the trial court required
respondent, among other conditions, to avoid possessing or transporting firearms
and to participate in a drug dependency treatment program. These conditions
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illustrate that supervised release, unlike incarceration, provides individuals with
postconfinement assistance.”). Under Burkey, this case is therefore moot.1
Because Joseph has failed to establish that we have jurisdiction, we will
dismiss this appeal.
1
Joseph remains free to seek a modification of the term of supervised release under
18 U.S.C. § 3583(e)(1). See also United States v. Johnson, 529 U.S. 53, 60 (2000).
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