United States v. Greer ( 2023 )

Case: 22-30211 Document: 00516631536 Page: 1 Date Filed: 02/01/2023
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
February 1, 2023
No. 22-30211
Lyle W. Cayce
Clerk
United States of America,
Plaintiff—Appellee,
versus
Charles Joseph Greer,
Defendant—Appellant.
Appeal from the United States District Court
for the Western District of Louisiana
USDC No. 3:19-CR-235-TAD-KDM-1
Before Richman, Chief Judge, and King and Higginson, Circuit
Judges.
Stephen A. Higginson, Circuit Judge:
Charles Joseph Greer was convicted in 2015 of possessing child
pornography and sentenced to an 86-month term of imprisonment and six
years of supervised release. In 2019, Greer violated conditions of his
supervised release, and the district court sentenced him to fifteen more
months of imprisonment to be followed by five years of supervised release.
See United States v. Greer, 812 F. App’x 272 (5th Cir. 2020) (per curiam)
(unpublished). After starting his second term of supervised release, Greer
again violated its conditions. The district court revoked Greer’s supervised
Case: 22-30211 Document: 00516631536 Page: 2 Date Filed: 02/01/2023
No. 22-30211
release and sentenced him to eighteen more months of imprisonment. Greer
timely appealed, arguing that his constitutional rights were violated at his
preliminary revocation hearing, that the district court erred in detaining him
pending the final revocation hearing, and that the district court imposed an
unreasonable sentence upon revocation. For the reasons stated below,
Greer’s challenges to his preliminary revocation hearing and pre-revocation
detention are moot. However, we VACATE Greer’s sentence and
REMAND for resentencing.
I.
Article III of the Constitution limits our jurisdiction to “Cases” and
“Controversies.” A case is moot and no longer justiciable under Article III
“when the issues presented are no longer live or the parties lack a legally
cognizable interest in the outcome.” Already, LLC v. Nike, Inc., 568 U.S. 85,
91 (2013) (cleaned up). This is only true “when it is impossible for a court to
grant any effectual relief whatever to the prevailing party.” Chafin v. Chafin,
568 U.S. 165, 172 (2013); see United States v. Heredia-Holguin, 823 F.3d 337,
340 (5th Cir. 2016) (en banc).
Applying these principles, Greer’s challenges to his preliminary
revocation hearing and pre-revocation detention are moot. When “a person
is in custody for violating a condition of . . . supervised release,” the Federal
Rules of Criminal Procedure require that a judge “promptly conduct a
hearing to determine whether there is probable cause to believe that a
violation occurred.” Fed. R. Crim. P. 32.1(b)(1)(A). If the judge finds
probable cause at the preliminary hearing, then the judge must conduct a final
revocation hearing. Id. 32.1(b)(1)(C). If not, “the judge must dismiss the
proceeding.” Id. Because the preliminary hearing merely determines
whether a final hearing will be held, the disposition of the final hearing
generally renders challenges to the preliminary hearing moot, see United
2
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States v. McFarland, 726 F. App’x 709, 712-13 (10th Cir. 2018); Antonelli v.
U.S. Parole Comm’n, 12 F.3d 1100 (7th Cir. 1993) (unpublished), except
where a defendant alleges that an error in the preliminary hearing affected
the disposition of the final hearing or subsequent sentencing in some way.
Greer alleges that the magistrate judge violated his constitutional
rights at the preliminary hearing, but he was found to have violated the
conditions of his supervised release at a final hearing and does not allege that
there were any errors at the final hearing. Although Greer insists that he
“continues to suffer from the legal errors made at the preliminary hearing”
and that those errors have caused “his continued unjustified detention,” he
does not explain why this is so. He does not say how the alleged errors at the
preliminary hearing might have infected the final hearing. Nor does he cite
any authority to support his proposition that we could vacate the district
court’s judgment and remand for resentencing based on an error at the
preliminary hearing.1 Indeed, vacatur of a sentence imposed after a final
hearing is not an available remedy for errors made during a preliminary
hearing when the alleged constitutional violation has no relation to the
defendant’s subsequent imprisonment.2 See Collins v. Turner, 599 F.2d 657,
1
Greer relies on a line of cases holding that deportation does not moot a challenge
to a term of supervised release imposed as part of the underlying sentence. Heredia-
Holguin, 823 F.3d at 342-43, 343 n.5; see United States v. Vega, 960 F.3d 669, 673 (5th Cir.
2020) (holding that a defendant’s challenge to a term of incarceration is not mooted where
the defendant is released from custody and deported and only remains subject to a term of
supervised release); United States v. Solano-Rosales, 781 F.3d 345, 355 (6th Cir. 2015)
(similar). These cases do not speak to the remedies that are available on a challenge to a
preliminary revocation hearing after a final hearing and sentencing.
2
For similar reasons, Greer’s challenge to his pre-revocation detention is moot.
On the magistrate judge’s order, Greer was detained from March 2, 2022—the date of the
preliminary hearing—until the final hearing on April 13, 2022. But once the district court
entered judgment sentencing Greer to a term of imprisonment, Greer was no longer
detained pursuant to the magistrate judge’s detention order—his current detention is the
result of the district court’s judgment. We cannot grant Greer relief from a detention order
3
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658 (5th Cir. 1979) (per curiam); United States v. Companion, 545 U.S. 308,
313 (2d Cir. 1976).
Accordingly, we lack jurisdiction over these challenges.
II.
The district court committed a reversible procedural error by
sentencing Greer to two consecutive nine-month terms of imprisonment for
violating two conditions of his supervised release.
At the final hearing, the district court found that Greer violated two
conditions of his supervised release by failing “to abide by the rules and
conditions of the half-way house” and failing “to maintain a residency at a
half-way house.” The district court calculated the Guidelines Range
sentence as “four to nine months,” stated that “the maximum statutory
punishment is nine months,” and sentenced Greer to “nine months on each
[violation]” to run consecutively “for a total of [eighteen] months, nine
months on the first [violation], nine months on the second.” In imposing this
sentence, the district court explained that it gave Greer a fifteen-month
sentence the first time Greer violated the conditions of his supervised release,
“and that didn’t seem to do any good.” The district judge also said, “[it]
looks like really the most I can give him is nine months on each one, and that’s
what I’m going to do.”
Greer objected that “he should not have been sentenced to more than
nine months.”
that is no longer in effect. See United States v. Ruiz-Garcia, 832 F. App’x 313, 314 (5th Cir.
2020) (per curiam) (unpublished) (finding moot appeal of pretrial detention order after
guilty plea).
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The statute governing revocation of supervised release provides that
the district court may, upon finding “that the defendant violated a condition
of supervised release,” “revoke a term of supervised release, and require the
defendant to serve in prison all or part of the term of supervised release
authorized by statute for the offense that resulted in such term of supervised
release.” 18 U.S.C. § 3583(e)(3). Under this provision, the district court
does not impose a term of imprisonment for a violation of a condition of
supervised release, but rather, imposes a term of imprisonment for the
revocation of the term of supervised release. See United States v. Mizwa, 762
F. App’x 100, 104 (3d Cir. 2019) (“While [the defendant] violated four
conditions of his supervised release, his original conviction derived from one
count. Therefore, there is only one term of supervised release to revoke and
he should only receive a single sentence for the violation.”).
Because § 3583(e)(3) limits the district court to imposing one term of
imprisonment upon revoking one term of supervised release, the Guidelines
policy statement explains how district courts should calculate the advisory
term of imprisonment if the revocation is based on multiple violations of
conditions of supervised release. Where this is the case, “the grade of the
violation” for purposes of calculating the term of imprisonment “is
determined by the violation having the most serious grade.” U.S.S.G.
§ 7B1.1(b); see id. § 7B1.4 (listing recommended ranges of imprisonment
based on violation grade and criminal history category); United States v.
Turner, 21 F.4th 862, 865 (D.C. Cir. 2022) (summarizing this procedure). In
other words, if a term of supervised release is revoked because of multiple
violations of supervision conditions, the district court may consider the
“nature and circumstances” of those multiple violations, 18 U.S.C.
§ 3553(a)(1); see, e.g., United States v. Smith, 823 F. App’x 903, 904 (11th Cir.
2020) (per curiam) (unpublished), but should calculate the length of a single
term of imprisonment based on the most serious violation.
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Accordingly, a district court cannot impose multiple terms of
imprisonment, concurrent or consecutive, upon revoking a single term of
supervised release.
We note that the district court tried to impose a Guidelines range
sentence. It calculated the range as four to nine months for each violation of
a supervision condition because it thought the statutory maximum for each
violation was nine months. Then, the district court adopted what it believed
to be the statutory maximum on each violation, which resulted in two
consecutive nine-month terms, or eighteen months in total. But as the
government acknowledges, the total advisory range for a term of
imprisonment upon revocation of Greer’s supervised release was three to
nine months. See 18 U.S.C. §§ 2252A(a)(5)(B) (offense of conviction),
2252A(b)(2) (maximum punishment), 3559(a)(3) (describing maximum
punishment for Class C felony); U.S.S.G. §§ 7B1.1(a)(3) (Grade C
supervised release violation), 7B1.4(a) (applicable range of imprisonment).
Because it is impossible to say how the district court would have
sentenced Greer if it had known that the Guidelines range was nine months
total, and that the total statutory maximum sentence was twenty-four
months, not nine months per violation, see 18 U.S.C. § 3583(e)(3), we cannot
resolve whether the district court’s error affected Greer’s prison sentence.
The district court may have varied or departed upwards and imposed the
same eighteen-month sentence or a longer one, up to the twenty-four-month
statutory maximum. Or, as evinced by the district court’s desire to follow
the Guidelines, the district court may have imposed a more modest upwards
variance or departure than eighteen months. Given these unique
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circumstances, the district court’s misunderstanding of its authority to
sentence Greer was not harmless.3
The judgment of the district court is VACATED and the case is
REMANDED to the district court for resentencing in accordance with this
opinion.4 Greer’s motion for release pending disposition of this appeal, is
DENIED as moot.
3
Even under plain-error review, this error “seriously affects the fairness, integrity,
[and] public reputation of [the] judicial proceedings.” Puckett v. United States, 556 U.S.
129, 135 (2009) (cleaned up). In sentencing Greer, the district court departed from the
relevant statutory framework and the Sentencing Guidelines. As a result, the district court
gave Greer two terms of imprisonment where Congress authorized one. We will exercise
our discretion to correct this error.
4
Moreover, as the government acknowledges on appeal but failed to point out
during the sentencing, the district court also (i) incorrectly identified the most serious
grade of Greer’s violations, (ii) incorrectly calculated the applicable Guidelines range,
(iii) incorrectly identified the applicable statutory maximum, and (iv) incorrectly asserted
that under § 7B1.4, the minimum term of imprisonment was at least one month but not
more than six months. On remand, the district court should follow applicable law in
sentencing Greer.
7