United States v. Alexander Penn ( 2019 )

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 19a0498n.06
Case Nos. 17-4119/18-3010
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
FILED
17-4119 Sep 27, 2019
DEBORAH S. HUNT, Clerk
UNITED STATES OF AMERICA, )
)
Plaintiff-Appellee,
)
v. ) ON APPEAL FROM THE UNITED
ALEXANDER NATHANIEL PENN, ) STATES DISTRICT COURT FOR
) THE NORTHERN DISTRICT OF
Defendant-Appellant. ) OHIO
)
18-3010 )
ALEXANDER NATHANIEL PENN, )
Petitioner-Appellant, )
)
v.
)
UNITED STATES OF AMERICA, )
Respondent-Appellee. )
BEFORE: SUTTON, COOK, and THAPAR, Circuit Judges.
THAPAR, Circuit Judge. Alexander Penn is serving five years in prison because he
violated the conditions of his supervised release. Penn brought a § 2255 motion that could shorten
his sentence by several years. The district court held that the motion was moot (we disagree).
Penn also claims the district court should have sua sponte stayed his supervised release sentencing
(we again disagree). Thus, we reverse in part and affirm in part.
Case Nos. 17-4119/18-3010, United States v. Penn
I.
Back in 2006, Penn pled guilty to being a felon in possession of a firearm. Because of his
criminal history, Penn received an enhanced punishment under the Armed Career Criminal Act,
18 U.S.C. § 924(e). The district court sentenced Penn to a term of imprisonment followed by
supervised release.
After Penn began his supervised release, the Supreme Court decided Johnson v. United
States, 135 S. Ct. 2551 (2015), which held the residual clause of the ACCA unconstitutionally
vague. Johnson cast doubt on whether Penn could continue to be treated as an armed career
criminal. So Penn asked for permission to file a second § 2255 motion, arguing that he no longer
had enough predicate offenses to qualify under the ACCA.
As this court considered his request, Penn separately pled guilty to robbing banks in Ohio
and Pennsylvania. The district court heard about these new charges and scheduled a revocation
hearing for Penn’s felon-in-possession sentence. At the hearing, Penn admitted that he had
violated his release conditions by committing several bank robberies but disputed the maximum
sentence he faced.
Ordinarily, felons convicted of unlawfully possessing a firearm cannot spend more than
two years in prison upon revocation of their supervised release. See 18 U.S.C. §§ 924(a)(2),
3559(a)(3), 3583(e)(3). Yet Penn faced a five-year statutory maximum because he was classified
as an armed career criminal. See id. §§ 924(e)(1), 3559(a)(1), 3583(e)(3). Penn asked for a lenient
sentence since his § 2255 motion might decrease his statutory maximum. But the district court
was not persuaded. So it revoked Penn’s supervised release and sentenced him to the maximum
term—five years. And it made that term consecutive to his sentences for the bank robberies. Penn
then appealed.
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Case Nos. 17-4119/18-3010, United States v. Penn
Meanwhile, this court granted Penn’s request to file a second § 2255 motion and sent the
matter back to the district court. Soon after, the district court denied the motion as moot. The
district court reasoned it could not give any further relief on the felon-in-possession sentence
because it had revoked that sentence. Again, Penn appealed.
This consolidated appeal raises two questions: Did the district court err when it decided
that Penn’s § 2255 motion was moot? And did the district court err by not sua sponte staying
sentencing on Penn’s supervised release violations?
II.
Mootness. The federal judiciary has the power to decide “Cases” and “Controversies.”
U.S. Const. art. III, § 2. This power reaches cases when a criminal defendant suffers an injury
traceable to the government likely to be redressed by a favorable judicial decision. United States
v. Albaadani, 863 F.3d 496, 502 (6th Cir. 2017). Otherwise, the case is moot.
Applying that tried-and-true test for mootness makes quick work of this issue. If Penn is
not an armed career criminal, then his sentence will be shortened by several years. Spending more
time in prison for an allegedly erroneous sentencing enhancement counts as an injury traceable to
the government. And a favorable judicial decision would redress Penn’s injury. Thus, Penn’s
claim is not moot.
The government insists that Penn’s § 2255 motion is moot because, the government says,
his “initial sentence” no longer exists. As the government sees it, “[t]he new sentence imposed
upon revocation of Penn’s supervised release extinguished the prior, underlying sentence” for the
felon-in-possession conviction. Appellee Br. at 11. And because that sentence expired, his motion
no longer matters. The government cites a single, unpublished case for support, United States v.
Roach, 257 F. App’x 956 (6th Cir. 2007).
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Case Nos. 17-4119/18-3010, United States v. Penn
But “supervised release punishments” are “part of the penalty for the initial offense.”
United States v. Haymond, 139 S. Ct. 2369, 2379–80 (2019) (plurality opinion) (cleaned up). That
makes sense. After all, treating revocation punishments as independent of the original sentence
would raise serious constitutional concerns. Take the Double Jeopardy Clause. Defendants often
have their supervised release revoked because of new criminal activity. Those defendants may
then be criminally prosecuted for the same conduct that triggered the revocation of their supervised
release (and thus face additional prison time). If revocation sentences were separate from the
sentence underlying the original conviction, this practice might amount to double punishment for
identical conduct. See Johnson v. United States, 529 U.S. 694, 700–01 (2000). But it doesn’t
because the revocation sentences are part and parcel of the sentence underlying the original
conviction. See United States v. Wheeler, 330 F.3d 407, 412 (6th Cir. 2003). So the government’s
premise is wrong.
Nor does Roach change anything. For one thing, it is unpublished and thus not binding.
United States v. Yates, 866 F.3d 723, 728 (6th Cir. 2017). But more importantly, it is irrelevant
here. Jeffrey Roach claimed on appeal that the district court imposed too long a period of
supervised release. Copy of Order Revoking Supervised Release, United States v. Roach, No. 06-
5448 (6th Cir. 2007), ECF No. 56 at 1 n.1. Roach’s appeal became moot because the district court
eliminated his supervised release, thereby curing the injury. Roach, 257 F. App’x at 956. That
hasn’t happened here. Penn is still considered an armed career criminal and, as a result, faces
additional time in prison. Penn thus collaterally attacks a legal error infecting his original sentence
and all future revocation punishments.
As a last resort, the government falls back on its argument that Penn’s § 2255 motion is
untimely. We decline to answer that question in the first instance. District courts should resolve
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Case Nos. 17-4119/18-3010, United States v. Penn
timeliness and equitable tolling issues because they can make a factual record to aid their decision
making. See generally In re McDonald, 514 F.3d 539, 543–44 (6th Cir. 2008). Penn’s motion
may or may not be timely—for now, we will let the district court sort that out.
Revocation of Supervised Release. Penn separately argues that the district court erred when
it did not stay his revocation sentencing on the supervised release violation until his § 2255 motion
had run its course. In support, he cites some dicta from United States v. Hall, 735 F. App’x 188
(6th Cir. 2018). But three problems:
First, Hall is unpublished and thus not binding. Yates, 866 F.3d at 728. Second, Hall does
not say that district courts must stay sentencing until the § 2255 motion is resolved; it simply says
that they may do so. 735 F. App’x at 191–92. Finally, Penn never asked the district court to stay
the proceedings. While district courts certainly have the power to stay revocation proceedings,
Penn has pointed to no law showing they must do so sua sponte. So his argument on this front
fails.
***
We REVERSE the district court’s determination that Penn’s § 2255 motion is moot and
REMAND for further consideration in his collateral proceedings. We AFFIRM the district
court’s revocation order in the direct appeal.
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