United States v. Kenneth Jones , 639 F. App'x 184 ( 2016 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 15-4467
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
KENNETH J. JONES,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Norfolk. Robert G. Doumar, Senior
District Judge. (2:14-cr-00176-RGD-DEM-1)
Submitted: March 30, 2016 Decided: April 25, 2016
Before KEENAN and FLOYD, Circuit Judges, and DAVIS, Senior
Circuit Judge.
Dismissed by unpublished per curiam opinion.
Geremy C. Kamens, Acting Federal Public Defender, Frances H.
Pratt, Richard J. Colgan, Assistant Federal Public Defenders,
Alexandria, Virginia, for Appellant. Dana J. Boente, United
States Attorney, Joseph Kosky, Kathleen Doughterty, Assistant
United States Attorneys, Norfolk, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Kenneth J. Jones pled guilty to one count of knowingly
making a false statement when attempting to purchase a firearm,
in violation of 18 U.S.C. § 924(a)(1)(A) (2012). Based on a
criminal history category of V, Jones’ advisory Sentencing
Guidelines range was 4 to 10 months’ imprisonment. The district
court sentenced Jones to 10 months’ imprisonment followed by a
three-year term of supervised release. Jones completed the
custodial portion of his sentence on November 21, 2015, and is
currently serving his term of supervised release. Jones’ sole
contention on appeal is that the district court’s miscalculation
of his criminal history category constituted plain error. The
Government responds that the expiration of Jones’ custodial
sentence moots his appeal. We agree.
Mootness is a threshold issue that “goes to the heart of
the Article III jurisdiction of the courts.” Friedman’s, Inc.
v. Dunlap, 290 F.3d 191, 197 (4th Cir. 2002) (internal quotation
marks omitted). “[A] case is moot when the issues presented are
no longer ‘live’ or the parties lack a legally cognizable
interest in the outcome.” Powell v. McCormack, 395 U.S. 486,
496 (1969). To satisfy Article III’s case or controversy
requirement, “a litigant must have suffered some actual injury
that can be redressed by a favorable judicial decision.” Iron
Arrow Honor Soc’y v. Heckler, 464 U.S. 67, 70 (1983).
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Redressability is present if it is “likely, as opposed to merely
speculative, that the injury will be redressed by a favorable
decision.” Lujan v. Defenders of Wildlife, 504 U.S. 555, 561
(1992) (internal quotation marks omitted).
Jones does not challenge his conviction. Instead, he
posits that resentencing is warranted so that, if he is
resentenced to a period shorter than 10 months, he can receive
credit from the Bureau of Prisons toward any future sentence he
might serve. He further contends that the miscalculation of his
criminal history category affects the determination of the
advisory term of imprisonment that he would face should he be
found in violation of the conditions of his supervised release.
Within the context of challenges to a defendant’s
imprisonment, “once the convict’s sentence has expired some
concrete and continuing injury other than the now-ended
incarceration or parole—some collateral consequence of the
conviction—must exist if the suit is to be maintained.” United
States v. Hardy, 545 F.3d 280, 283 (4th Cir. 2008) (alterations
and internal quotation marks omitted). Jones, having completed
the term of imprisonment he seeks to challenge on appeal, “bears
the burden of demonstrating collateral consequences sufficient
to meet Article III’s case-or-controversy requirement.” Id. at
284 (internal quotation marks omitted).
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Because Jones already has served his term of imprisonment,
there is no longer a live controversy regarding the length of
his confinement. Therefore, his challenge to the district
court’s decision to impose the 10–month prison term is moot.
See Hardy, 545 F.3d at 284 (dismissing appeal of revocation
sentence as moot because Hardy had completed serving his
sentence and failed to identify any collateral consequence).
To the extent that Jones argues that the alleged error
could affect future proceedings, the case-or-controversy
requirement may not be satisfied by the speculation that a
respondent will commit an additional crime and, as a result,
serve a future sentence of imprisonment. As stated by the
Supreme Court, “Respondents themselves are able-and indeed
required by law-to prevent such a possibility from occurring.”
Lane v. Williams, 455 U.S. 624, 632 n.13 (1982); accord Spencer
v. Kemna, 523 U.S. 1, 15 (1998); see also O’Shea v. Littleton,
414 U.S. 488, 497 (1974) (“[W]e are . . . unable to conclude
that the case-or-controversy requirement is satisfied by general
assertions or inferences that in the course of their activities
respondents will be prosecuted for violating valid criminal
laws. We assume that respondents will conduct their activities
within the law and so avoid prosecution and conviction . . .
.”). Because Jones fails to identify a collateral
consequence that is not dependent on the commission of another
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crime, we dismiss this appeal as moot. We dispense with oral
argument because the facts and legal contentions are adequately
presented in the materials before this court and argument would
not aid the decisional process.
DISMISSED
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