United States v. Peter Bernegger ( 2020 )


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  •                         NONPRECEDENTIAL DISPOSITION
    To be cited only in accordance with Fed. R. App. P. 32.1
    United States Court of Appeals
    For the Seventh Circuit
    Chicago, Illinois 60604
    Submitted February 10, 2020*
    Decided February 11, 2020
    Before
    MICHAEL S. KANNE, Circuit Judge
    DIANE S. SYKES, Circuit Judge
    AMY J. ST. EVE, Circuit Judge
    Nos. 19-2052 and 19-2415
    UNITED STATES OF AMERICA,                         Appeals from the United States District
    Plaintiff-Appellee,                          Court for the Eastern District of
    Wisconsin.
    v.                                          No. 18-CR-223
    PETER M. BERNEGGER,                               William C. Griesbach,
    Defendant-Appellant.                         Judge.
    ORDER
    In these consolidated appeals, Peter Bernegger challenges modifications to the
    conditions of his supervised release requiring him to make monthly restitution
    payments and to disclose information about his finances. But his term of supervised
    *  We have agreed to decide the case without oral argument because the briefs and
    record adequately present the facts and legal arguments, and oral argument would not
    significantly aid the court. FED. R. APP. P. 34(a)(2)(C).
    Nos. 19-2052 and 19-2415                                                             Page 2
    release has already ended, and he cannot show that he suffers any collateral
    consequences, so we lack jurisdiction to review the orders he challenges.
    Bernegger was convicted of mail fraud and bank fraud, 18 U.S.C. §§ 1341 & 1344,
    in the Northern District of Mississippi and sentenced to terms of imprisonment and
    supervised release. The trial court also ordered him to pay $1,725,000.00 in restitution
    and, though it did not set a payment schedule, required him to make equal monthly
    payments towards restitution as a condition of his supervised release. After he
    completed his prison term (during which he paid $575 towards restitution) and
    obtained permission to move to Wisconsin, the Eastern District of Wisconsin accepted
    jurisdiction over his supervised release in December 2018. See 18 U.S.C. § 3605.
    Four years after Bernegger’s release, he had paid no additional restitution. As a
    result, the Probation Office petitioned the court to modify his conditions of supervised
    release to include a restitution payment schedule. At a hearing on the petition, the
    district court set a monthly payment schedule of $100 or 20 percent of his after-tax
    income. See 18 U.S.C. § 3583(e)(2). It later held two hearings to assess his compliance,
    where it also ordered him to cooperate with the U.S. Attorney’s Financial Litigation
    Unit about his financial status.
    Bernegger filed notices after the first and last hearings (appeal Nos. 19-2052 and
    19-2415), appealing all rulings made during the hearings, and another notice of appeal
    after the district court discharged him from supervised release in September 2019
    (appeal No. 19-2845). We consolidated the first two appeals at his request and
    dismissed the third as unnecessary because the district court made no rulings after he
    filed his second notice of appeal.
    Because Bernegger’s term of supervised release has already ended, we must first
    determine whether his two direct appeals are moot. See United States v. Larson, 
    417 F.3d 741
    , 747 (7th Cir. 2005). Though neither party addressed mootness in their briefs or their
    amended jurisdictional statements, we have an independent duty to assess our
    jurisdiction. See Minnesota Life Ins. Co. v. Kagan, 
    724 F.3d 843
    , 846 (7th Cir. 2013).
    A justiciable case or controversy must exist at all stages of review, and in
    criminal cases, “this requirement means 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. Juvenile Male,
    
    564 U.S. 932
    , 936 (2011). Bernegger’s appeals therefore present a live controversy only if
    he continues to face a “collateral consequence”—a legal disadvantage—because of the
    Nos. 19-2052 and 19-2415                                                            Page 3
    modification orders he challenges. See Spencer v. Kemna, 
    523 U.S. 1
    , 7–8 (1998); Lane v.
    Williams, 
    455 U.S. 624
    , 631–33 (1982). We can discern none.
    The modification orders did no more than require Bernegger to pay a portion of
    what he already owed as part of the judgment in his criminal case, see United States v.
    Sawyer, 
    521 F.3d 792
    , 797 (7th Cir. 2008), and facilitate his inevitable contact with the
    Financial Litigation Unit. Bernegger’s restitution obligation survived his completion of
    his term of supervised release, and that obligation has been previously affirmed on
    direct appeal. See United States v. Bernegger, 
    661 F.3d 232
    , 242 (5th Cir. 2011). In these
    appeals, we cannot grant him any effective relief from supervised-release conditions to
    which he is no longer subject. See Calderon v. Moore, 
    518 U.S. 149
    , 150 (1996); cf. Pope v.
    Perdue, 
    889 F.3d 410
    , 414 (7th Cir. 2018) (criminal appeal not moot if there is “any
    potential benefit” to defendant (quoting United States v. Trotter, 
    270 F.3d 1150
    , 1152
    (7th Cir. 2001))). Insofar as he seeks the return of $300 he believes he paid according to
    an improperly entered payment schedule, we cannot undo the court’s condition after it
    has expired. And he cannot argue that he did not owe the money. Bernegger asserts that
    he was forced to go into debt to satisfy the payment schedule, but that is not the type of
    ongoing injury that would save these appeals. See 
    Lane, 455 U.S. at 632
    –33 (explaining
    qualities of “civil disabilities” and legal consequences that can keep a direct criminal
    appeal live).
    DISMISSED