Arnold F. Hohn v. United States ( 2001 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________
No. 00-3327
___________
Arnold Frank Hohn, *
*
Appellant, *
* Appeal from the United States
v. * District Court for the
* District of Nebraska.
United States of America, *
*
Appellee. *
___________
Submitted: June 14, 2001
Filed: August 22, 2001
___________
Before WOLLMAN, Chief Judge, MAGILL, and HAMILTON*, Circuit Judges.
___________
MAGILL, Circuit Judge.
Arnold F. Hohn appeals the district court’s denial of his 28 U.S.C. § 2255motion to vacate, set aside, or correct his sentence for using or carrying a firearm
during and in relation to a drug trafficking crime under 18 U.S.C. § 924(c)(1). We hold
that we do not have jurisdiction to hear Hohn’s appeal, and thus vacate the judgment
and remand to the district court to dismiss the motion as moot.
*
The Honorable Clyde H. Hamilton, United States Circuit Judge for the Fourth
Circuit, sitting by designation.
I.
In June 1990, police searched Hohn’s home after an informant claimed that Hohn
was selling methamphetamine. Police arrested Hohn, the only person present at the
time of the search, in his living room. He neither was carrying a firearm on his person,
nor did police find any weapons in the living room. On Hohn’s kitchen counter, police
discovered methamphetamine, three firearms, and two holsters. Police also found two
firearms in a box in Hohn’s kitchen. In Hohn’s bedroom, police found more
methamphetamine, as well as another firearm and holster nearby. In a second
bedroom, police observed a wall-mounted gun case containing a collection of hunting
rifles and shotguns.
In wake of the search of Hohn’s home, the government charged Hohn with: (1)
possession of methamphetamine with intent to distribute within 1000 feet of a school,
in violation of 21 U.S.C. §§ 841(a) and 845a (recodified at 21 U.S.C. § 860); (2) being
a felon in possession of a firearm, in violation of 18 U.S.C. §§ 922(g) and 924(a)(2);
and (3) using or carrying a firearm during and in relation to a drug trafficking crime, in
violation of § 924(c)(1).1 At trial, Hohn testified in his own behalf, admitting
possession of methamphetamine and firearms, but claiming that he owned the weapons
because he is an avid hunter and because his home had been burglarized and vandalized
repeatedly. No witness testified to seeing Hohn use or carry a firearm during and in
relation to any drug activity.
At the close of the trial, the district court provided the jury with the following
1
In 1998, Congress amended § 924(c)(1) to proscribe possession of a firearm in
furtherance of a drug trafficking crime, in addition to proscribing using or carrying a
firearm during and in relation to a drug trafficking crime. Act of Nov. 13, 1998, Pub.L.
105-386, § 1(a), 112 Stat. 3469; 18 U.S.C. § 924(c)(1) (2000). Hohn’s appeal requires
us to examine the pre-1998 statute.
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instruction on the meaning of “use” and “carry” in § 924(c)(1):
The phrase ‘used a firearm’ means having a firearm available to aid in the
commission of possession of Methamphetamine with intent to distribute.
Similarly, the phrase ‘carried a firearm’ does not require proof of actual
possession of a firearm or use of it in any affirmative manner, but does
require proof beyond a reasonable doubt that the firearm was available to
provide protection in connection with the possession of
Methamphetamine with intent to distribute or to facilitate success.
The court overruled Hohn’s objection that the instruction “allows this jury to find that
merely having a firearm available is sufficient” to convict under the “use” prong of §
924(c)(1).
The jury found Hohn guilty of all counts, and the district court sentenced him to
ninety months imprisonment, with sixty months of the sentence issued for the §
924(c)(1) conviction. The court also imposed a six-year term of supervised release for
the §§ 841(a) and 845a violation, and three-year terms of supervised release for the
remaining two counts, both running concurrently to the six-year term.
Hohn’s rather mundane criminal conviction has sparked a judicial odyssey that
has lasted over a decade and has resulted in three prior opinions of this court and a trip
to the United States Supreme Court. We turn now to sketch Mr. Hohn’s long quest to
reverse his § 924(c)(1) conviction.
On direct appeal, Hohn did not challenge his § 924(c)(1) conviction or the jury
instructions related to that offense, probably because of this court’s broad interpretation
of the word “use” at the time of his appeal. See, e.g., United States v. LaGuardia, 774
F.2d 317, 321 (8th Cir. 1985) (holding that a firearm’s “presence and availability in
light of the evident need” demonstrate “use”). This court affirmed Hohn’s convictions.
United States v. Hohn, 8 F.3d 1301, 1307 (8th Cir. 1993).
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Subsequently, the Supreme Court effectively abrogated this court’s interpretation
of the word “use” when it concluded that § 924(c)(1) requires “active employment of
the firearm” for conviction under the “use” prong. Bailey v. United States, 516 U.S.
137, 144 (1995). Relying on Bailey, Hohn filed a pro se motion to vacate, set aside,
or correct his sentence under 28 U.S.C. § 2255. Hohn argued that his conduct did not
amount to a violation of § 924(c)(1), as interpreted by Bailey, and that the district
court’s jury instructions improperly defined the phrase “used a firearm.” The district
court denied his motion, concluding that Hohn waived his claim by failing to challenge
his § 924(c)(1) conviction or the corresponding jury instructions on direct appeal. This
court denied Hohn a certificate of appealability, concluding that his claim is statutorily
based and thus fails to make “‘a substantial showing of the denial of a constitutional
right.’” Hohn v. United States, 99 F.3d 892, 892-93 (8th Cir. 1996) (quoting 28 U.S.C.
§ 2253(c)(2)), vacated, 524 U.S. 236 (1998). The Supreme Court granted certiorari to
determine whether it has jurisdiction to review federal circuit court decisions denying
applications for certificates of appealability. 524 U.S. at 238-39. Answering this
question affirmatively, the Court vacated our denial of a certificate of appealability
because the government conceded that Hohn’s claim is constitutional in nature, and
remanded to this court for further consideration. Id. at 253.
On remand, this court held Hohn actually innocent of “using” a firearm under §
924(c)(1). Hohn v. United States, 193 F.3d 921, 924 (8th Cir. 1999). However, noting
that the jury also convicted Hohn under the “carry” prong, we remanded to the district
court “to engage in the fact-bound analysis of whether Hohn is factually innocent of
carrying a firearm during or in relation to a drug trafficking offense, in order to open
the gateway for the consideration of his defaulted Bailey claim.” Id.The district court ordered supplemental briefing on whether Hohn is factually
innocent of violating § 924(c)(1) under the “carry” prong. The court held that Hohn
did not establish actual innocence of “carrying” a firearm under § 924(c)(1), reasoning
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that
the guns being open and obvious on the kitchen counter with such things
as spare change next to holsters in which to carry them would indicate
that they were carried. The evidence along with the drugs being found in
the Defendant’s home and on his person, could allow a reasonable juror
to find that the Defendant carried the firearm in relation to a drug
trafficking crime. In addition, this Court notes that an informant stated
that the Defendant regularly carried a firearm.
The district court issued Hohn a certificate of appealability, and this appeal ensued.
Hohn was released from prison in October 1997 and currently is serving his six-year
term of supervised release. It is with this procedural scenario in mind that we hope
finally to bring Mr. Hohn’s odyssey to a conclusion.
II.
Before reaching the merits, we must determine whether we have jurisdiction to
entertain Hohn’s appeal notwithstanding his release from prison. See Arizonans for
Official English v. Arizona, 520 U.S. 43, 73 (1997) (“[E]very federal appellate court
has a special obligation to satisfy itself . . . of its own jurisdiction . . . .”) (internal
quotations and citations omitted). This is the case even though the government
concedes that we have jurisdiction. See Thomas v. Basham, 931 F.2d 521, 523 (8th
Cir. 1991). Although both this court and the Supreme Court have entertained Hohn’s
appeals since he was released from prison, neither court examined whether it had
jurisdiction to reach the merits of the appeal. Hohn, 524 U.S. 236; Hohn, 193 F.3d
921. The Supreme Court has cautioned that “drive-by jurisdictional rulings of this sort
. . . have no precedential effect.” Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83,
91 (1998).
Under Article III, § 2 of the United States Constitution, “‘the exercise of judicial
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power depends upon the existence of a case or controversy.’” DeFunis v. Odegaard,
416 U.S. 312, 316 (1974) (citation omitted). Regardless of whether an Article III, §
2 case existed in prior proceedings, Hohn must show the subsistence of a case or
controversy in this court. See Lewis v. Continental Bank Corp., 494 U.S. 472, 477-78
(1990). Specifically, Hohn must show that his appeal is not moot despite his release
from prison. Put another way, Hohn must show that the standing he had when he filed
his § 2255 motion continues to exist now. See United States Parole Comm'n v.
Geraghty, 445 U.S. 388, 397 (1980) (explaining that "mootness [is] ‘the doctrine of
standing set in a time frame: The requisite personal interest that must exist at the
commencement of the litigation (standing) must continue throughout its existence
(mootness).’”) (quoting Henry Monaghan, Constitutional Adjudication: The Who and
When, 82 Yale L.J. 1363, 1384 (1973)) . Thus, Hohn must show that he has suffered,
or is threatened with, an actual injury traceable to the government that is likely to be
redressed by a favorable decision. See Lewis, 494 U.S. at 477.
We hold that we do not have jurisdiction to entertain Hohn’s appeal under the
general mootness inquiry. Hohn is no longer imprisoned. Hohn’s three-year term of
supervised release for his § 924(c)(1) conviction runs concurrent to the six-year term
of supervised release stemming from his conviction under §§ 841(a) and 845a. Thus,
even if we were to hold Hohn’s § 924(c)(1) conviction unconstitutional, such a holding
would not affect Hohn’s term of supervised release.2 Therefore, Hohn’s case is moot
under the general mootness inquiry because a favorable decision could not redress any
2
It is arguable that we should count Hohn’s three-year term of supervised release
resulting from his § 924(c)(1) conviction as beginning when he was released from
prison in October 1997. If true, then this appeal comes in a different procedural
posture from the 1998 and 1999 opinions issued by this court and the Supreme Court.
Since this court’s 1999 decision, Hohn has completed over three years of supervised
release. Thus, it cannot be said that Hohn currently is serving a term of supervised
release resulting from his § 924(c)(1) conviction.
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injury caused by a purportedly unconstitutional conviction under § 924(c)(1).3
Our holding today compels us to revisit our decision in Sesler v. Pitzer, 110 F.3d
569 (8th Cir. 1997). In Sesler, the defendant pleaded guilty to violating § 924(c)(1),
and the district court sentenced him to sixty months of imprisonment followed by three
years of supervised release. Id. at 570. Subsequently, Congress enacted a statute
permitting the Bureau of Prisons (the “Bureau”) to reduce the sentence of a prisoner
who had committed a nonviolent offense by up to one year if the prisoner successfully
completed a substance abuse treatment program. 18 U.S.C. § 3621(e)(2)(B). Since
he already had completed a drug abuse program, the defendant in Sesler petitioned the
Bureau to reduce his sentence. 110 F.3d at 570. The Bureau denied the defendant’s
petition, concluding that he was ineligible for a sentence reduction under §
3621(e)(2)(B) because he had been convicted of a violent offense. Id. The defendant
then filed a habeas petition, which the district court denied. Id. After the defendant
3
Actually, Hohn’s pro se § 2255 motion seeks to vacate, set aside, or correct his
sentence. When a convict challenges his sentence, rather than the underlying
conviction, the completion of the sentence renders the convict’s motion moot. Lane v.
Williams, 455 U.S. 624, 631 (1982). We interpret pro se habeas filings liberally.
Papantony v. Hedrick, 215 F.3d 863, 865 (8th Cir. 2000). Although entitled “Federal
Custody; remedies on motion attacking sentence,” § 2255 is available to attack
convictions as well. Richard H. Fallon, Jr. et al., Hart & Wechsler’s The Federal
Courts & The Federal System 1461 (4th ed. 1996); United States v. Angelos, 763 F.2d
859, 860 (7th Cir. 1985) (Posner, J.) (holding that “if the defendant can show that
under no possible view of his conduct was he guilty of a federal crime, the conviction
will be set aside as ‘otherwise subject to collateral attack’ under 28 U.S.C. § 2255")
(citing Davis v. United States, 417 U.S. 333, 345-46 (1974)). We think that by
presenting a Bailey challenge, Hohn necessarily attacks his § 924(c)(1) conviction as
well as his sentence. Cf. Port v. Heard, 764 F.2d 423, 427-28 (5th Cir. 1985).
Moreover, given Hohn’s explicit requests, in both his appellate briefs and his response
to the government’s answer to his § 2255 motion, that this court reverse or vacate his
conviction, we interpret Hohn’s § 2255 motion to encompass a challenge to his §
924(c)(1) conviction.
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filed his appeal of the district court’s decision, he was released from prison and had
begun serving his term of supervised release. Id. at 571.
This court held that the defendant’s appeal presented a live case or controversy
because, if the Bureau had reduced his sentence by one year, then the defendant’s term
of supervised release would have begun one year earlier. Id. Therefore, we reasoned,
if the defendant was successful on the merits of his appeal, then his sentence could be
reduced by one year. Id. But see United States v. Douglas, 88 F.3d 533, 534 (8th Cir.
1996) (per curiam) (holding that courts may not credit prison time served in excess of
a defendant’s revised sentence against the defendant’s term of supervised release).
Under Sesler, if we vacated Hohn’s § 924(c)(1) conviction, we would be able
to reduce his term of supervised release by sixty months to account for the excess
amount of time he spent in prison for the § 924(c)(1) conviction. However, since
Sesler, the Supreme Court held in United States v. Johnson, 529 U.S. 53 (2000), that
a court may not reduce a prisoner’s term of supervised release to reflect an excess
amount of time in prison. Id. at 60. Thus, Sesler and Johnson are in conflict. See
Crawford v. Booker, No. 99-3121, 2000 WL 1179782, at *1-2 (10th Cir. Aug. 21,
2000). A panel of this court ordinarily cannot overrule a prior panel opinion, but this
rule does not apply when a decision of the Supreme Court casts doubt upon the prior
panel opinion. Patterson v. Tenet Healthcare, Inc., 113 F.3d 832, 838 (8th Cir. 1997).
The Supreme Court’s opinion in Johnson compels us to overrule Sesler. Under
Johnson, we could not reduce Hohn’s term of supervised release if we held his §
924(c)(1) conviction unconstitutional. Therefore, Hohn’s case is moot under the
general mootness inquiry because we are incapable of redressing his asserted injury.
Since Hohn is unable to show that his appeal presents a live case or controversy
under the general mootness inquiry, he must show that an exception to the mootness
doctrine applies to render his appeal justiciable. Even when a litigant is unable to meet
the requirements of the general mootness inquiry, the litigant may invoke an exception
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to the mootness doctrine to gain judicial review. There are four exceptions to the
mootness doctrine, so that a court will not dismiss a case as moot if: (1) secondary or
“collateral” injuries survive after resolution of the primary injury; (2) the issue is
deemed a wrong capable of repetition yet evading review; (3) the defendant voluntarily
ceases an allegedly illegal practice but is free to resume it at any time; or (4) it is a
properly certified class action suit. Erwin Chemerinsky, Federal Jurisdiction § 2.5.1,
at 128 (3d ed. 1999); Artway v. Attorney General of N.J., 81 F.3d 1235, 1246 n.6 (3d
Cir. 1996). In this case, the government argues that sufficient collateral consequences
flow from Hohn’s conviction so that even though he already has been released from
prison, we may entertain his appeal. Specifically, the government states: “A collateral
consequence of Hohn’s Section 924(c) conviction is an enhancement under Section
924(c) should Hohn in the future be convicted of a second or subsequent violation.”4
The Supreme Court has explained that "[a]n incarcerated convict's (or a
parolee's) challenge to the validity of his conviction always satisfies the case-or-
controversy requirement, because the incarceration (or the restriction imposed by the
terms of the parole) constitutes a concrete injury, caused by the conviction and
redressable by invalidation of the conviction." Spencer v. Kemna, 523 U.S. 1, 7
(1998). However, after the convict's sentence expires, "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." Id.4
The Supreme Court refers to collateral consequences as an exception to the
mootness doctrine. However, one commentator has noted that a case that fits within
the collateral consequences exception is not moot under the general mootness inquiry
"because some injury remains that could be redressed by a favorable federal court
decision." Chemerinsky, supra, § 2.5.2, at 130. We thus think that our holding that
Hohn’s appeal is moot under the general mootness inquiry renders unnecessary an
examination of whether his conviction creates sufficient collateral consequences to
make his appeal justiciable. Nevertheless, we proceed to examine Hohn’s appeal under
the collateral consequences exception to the mootness doctrine.
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In Spencer, the Court held that insufficient collateral consequences resulted from
the petitioner’s parole revocation to avoid mootness. Id. at 14-17. In so holding, the
Court criticized precedent that presumed the existence of collateral consequences and
that accepted "the most generalized and hypothetical of consequences as sufficient to
avoid mootness." Id. at 9-10 (citing Pollard v. United States, 352 U.S. 354 (1957), as
“[t]he gateway to abandonment of [the previously] fastidious approach to collateral
consequences”). Nevertheless, the Spencer Court did not overrule Pollard and its
progeny, instead noting that although a court may presume collateral consequences in
the context of a criminal conviction, the same cannot be said of parole revocation. 523
U.S. at 12.
Thus, we begin our analysis by presuming that Hohn’s § 924(c)(1) conviction
creates sufficient collateral consequences to render his appeal justiciable. However,
a presumption is just that - it does not end our analysis. Moreover, we begin our
analysis cognizant of the Spencer Court’s distinct distaste for finding collateral
consequences without a showing of a concrete statutory disability stemming from the
challenged conviction. We thus agree with then-Chief Judge Posner’s observation that
Spencer
tries to bring the law of habeas corpus into conformity with a general
‘hardening’ of standing requirements in recent years. A basic principle
of standing is that a person is not entitled to litigate in a federal court
unless he can show a reasonable probability of obtaining a tangible
benefit from winning. Certainty is not required but a remote possibility
won’t do.
Diaz v. Duckworth, 143 F.3d 345, 347 (7th Cir. 1998) (citations omitted).
The government contends that the possibility that a court could use Hohn’s §
924(c)(1) conviction to enhance his sentence should a court convict Hohn of another
crime in the future is a sufficient collateral consequence to render his appeal justiciable.
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We disagree. In Spencer, the habeas petitioner noted that a court could use the
revocation of his parole to increase his sentence in a future sentencing proceeding. 523
U.S. at 15. The Court rejected this proposed collateral consequence, stating that “it
was contingent upon respondents’ violating the law, being caught and convicted.
‘Respondents themselves are able--and indeed required by law--to prevent such a
possibility from occurring.’” Id. (quoting Lane v. Williams, 455 U.S. 624, 632 n.13
(1982)). Similarly, the government’s proposed collateral consequence in this case is
contingent upon Hohn committing another crime, something that is within his power to
prevent from occurring.
Nor can we identify any concrete statutory collateral consequence stemming
from Hohn’s § 924(c)(1) conviction that we could redress by vacating the conviction.
In addition to his § 924(c)(1) conviction, the jury found Hohn guilty of possessing
methamphetamine with intent to distribute within 1000 feet of a public school and being
a felon in possession of a firearm. Moreover, prior to this case, Hohn was convicted
of malicious destruction of property, for which he served one year of imprisonment.
These other convictions independently cause Hohn the kinds of concrete disadvantages
or disabilities that the Supreme Court has found constitute sufficiently adverse
collateral consequences to render a case justiciable, “such as deprivation of the right
to vote, to hold office, to serve on a jury, or to engage in certain businesses.” Spencer,
523 U.S. at 8 (citing Carafas v. LaVallee, 391 U.S. 234, 237 (1968) (finding sufficient
collateral consequences when the conviction left the petitioner unable to engage in
certain businesses, serve as a labor union official, vote in New York state elections, or
serve as a juror); Ginsberg v. New York, 390 U.S. 629, 633 n.2 (1968) (finding
sufficient collateral consequences when the conviction rendered the petitioner liable to
revocation of his license to operate a luncheonette business); United States v. Morgan,
346 U.S. 502, 503-04, 512-13 (1954) (finding sufficient collateral consequences when
the conviction had been used to increase the petitioner’s current sentence under a state
recidivist law); Fiswick v. United States, 329 U.S. 211, 221-23 (1946) (finding
sufficient collateral consequences when the conviction rendered the petitioner liable to
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deportation and denial of naturalization, and ineligible to serve on a jury, vote, or hold
office)).
We acknowledge that Spencer, although strongly critical of Pollard and its
progeny, did not overrule this line of cases. 523 U.S. at 8-14. However, the Pollard
line of cases did not examine whether the convictions at issue produced collateral
consequences independent from any other convictions in the petitioners’ records. We
thus are hesitant to infer from this line of cases that, in conducting our collateral
consequences analysis, we should examine only Hohn’s § 924(c)(1) conviction without
regard to his other convictions. Cf. Steel Co., 523 U.S. at 91 (cautioning that “drive-by
jurisdictional rulings . . . have no precedential effect”).
Moreover, Spencer cited with approval Justice Harlan’s concurrence in Parker
v. Ellis, 362 U.S. 574 (1960) (per curiam), overruled by Carafas, 391 U.S. 234. In
Parker, Justice Harlan concluded that the petitioner’s habeas filing was moot because
he had numerous prior convictions, so that even if the Court held in the petitioner’s
favor on his current challenge, such a holding would not prevent any adverse
consequence stemming from the petitioner’s other convictions. Id. at 576 (Harlan, J.,
concurring). Justice Harlan’s reasoning is equally applicable to the case here.
Even if we were to hold that Hohn is actually innocent of violating § 924(c)(1),
the collateral consequences attendant to Hohn’s other convictions would stand. We
simply cannot think of any concrete statutory collateral consequence stemming from
Hohn’s § 924(c)(1) conviction that, given Hohn’s numerous convictions, we would
erase by vacating the § 924(c)(1) conviction. We conclude that our inability to redress
the purported constitutional infirmity in Hohn’s § 924(c)(1) conviction overcomes the
presumption in favor of finding collateral consequences resulting from a criminal
conviction. See Parker, 362 U.S. at 576 (Harlan, J., concurring). Therefore, Hohn’s
appeal is moot, and we do not have jurisdiction to address his contention that his §
924(c)(1) conviction is unconstitutional. See Lowry v. McDonnell Douglas Corp., 211
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F.3d 457, 464 (8th Cir.), cert. denied, 121 S. Ct. 309 (2000) (holding that the lack of
jurisdiction prevented addressing the merits of the appeal since such a discussion
“could only be an advisory opinion”).
III.
Since we do not have jurisdiction to hear Hohn’s appeal, we VACATE the
judgment and REMAND to the district court to dismiss the motion as moot.
A true copy.
Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.
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