United States v. Kim ( 2023 )

Case: 22-50827 Document: 00516979252 Page: 1 Date Filed: 11/27/2023
United States Court of Appeals
for the Fifth Circuit
____________
United States Court of Appeals
Fifth Circuit
No. 22-50827
Summary Calendar FILED
____________ November 27, 2023
Lyle W. Cayce
United States of America, Clerk
Plaintiff—Appellee,
versus
Ojin Kim,
Defendant—Appellant.
______________________________
Appeal from the United States District Court
for the Western District of Texas
USDC No. 7:21-CV-250
USDC No. 7:17-CR-183-1
______________________________
Before Barksdale, Graves, and Oldham, Circuit Judges.
Per Curiam: *
Ojin Kim, former federal prisoner # 30806-479, challenges the district
court’s denial of his 28 U.S.C. § 2255 motion (person in federal custody may
move to vacate, set aside, or correct sentence). Our court granted a
_____________________
*
This opinion is not designated for publication. See 5th Cir. R. 47.5.
Case: 22-50827 Document: 00516979252 Page: 2 Date Filed: 11/27/2023
No. 22-50827
certificate of appealability (COA) for “his claim that his trial counsel was
ineffective at sentencing” and denied a COA for his other claims.
The Government contends this appeal is moot because Kim’s
sentence has fully expired. “Whether an appeal is moot is a jurisdictional
matter, [because] it implicates the Article III requirement that there be a live
case or controversy.” Bailey v. Southerland, 821 F.2d 277, 278 (5th Cir.
1987). “Under Article III’s case-or-controversy requirement, to invoke the
jurisdiction of a federal court, a litigant must have suffered, or be threatened
with, an actual injury traceable to the defendant and likely to be redressed by
a favorable judicial decision.” United States v. Heredia-Holguin, 823 F.3d 337,
340 (5th Cir. 2016) (en banc) (citation omitted).
While in custody, Kim filed his § 2255 motion. But, the case-or-
controversy requirement is distinct from the earlier-referenced § 2255 “in
custody” requirement. See Spencer v. Kemna, 523 U.S. 1, 7 (1998) (evaluating
case-or-controversy requirement after establishing defendant met § 2255 “in
custody” requirement). The former “subsists through all stages of federal
judicial proceedings, trial and appellate”. Lewis v. Cont’l Bank Corp., 494
U.S. 472, 477 (1990). “The parties must continue to have a personal stake
in the outcome of the lawsuit.” Id. at 78 (citation omitted).
“In criminal cases, [the case-or-controversy] requirement means [,
inter alia,] that a defendant wishing to continue his appeals after the
expiration of his sentence must suffer some ‘continuing injury’ or ‘collateral
consequence’ sufficient to satisfy Article III.” United States v. Juv. Male, 564
U.S. 932, 936 (2011). Accordingly, a defendant challenges only an expired
sentence, he has the burden of identifying an ongoing collateral consequence
that is traceable to the challenged portion of the sentence and would likely be
redressed by a favorable judicial decision. E.g., id.Case: 22-50827 Document: 00516979252 Page: 3 Date Filed: 11/27/2023
No. 22-50827
Kim fails to meet his burden. In his opening brief, he mentions his
continued pursuit of the appeal is linked to his immigrant status and the
possibility future immigration proceedings may be predicated on the
outcome of this action. Kim provides, however, no briefing on whether: he
has been placed in immigration proceedings; any immigration provision
would apply to him; or the immigration consequence would likely be
redressed by a favorable decision. See Juv. Male, 564 U.S. at 936 (outlining
burden for defendant challenging only expired sentence). “[T]he mere
possibility of future consequences is too speculative to give rise to a case or
controversy.” Bailey, 821 F.2d at 279. Therefore, Kim has waived his
contention by failing to brief it adequately. E.g., Fed. R. App. P.
28(a)(8)(A) (requiring appellant’s brief to include contentions and reasons
for them); United States v. Edwards, 303 F.3d 606, 647 (5th Cir. 2002)
(explaining unbriefed issues are waived on appeal). His assertions raising
other collateral consequences are bare and speculative.
DISMISSED.