United States v. Marcel King ( 2018 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 17-10006
Plaintiff-Appellee,
D.C. No.
v. 3:10-cr-00455-WHA-1
MARCEL DARON KING,
Defendant-Appellant. OPINION
Appeal from the United States District Court
for the Northern District of California
William H. Alsup, District Judge, Presiding
Argued and Submitted March 16, 2018
San Francisco, California
Filed June 4, 2018
Before: J. Clifford Wallace and Marsha S. Berzon, Circuit
Judges, and Kimberly J. Mueller,* District Judge.
Opinion by Judge Mueller
*
The Honorable Kimberly J. Mueller, United States District Judge for
the Eastern District of California, sitting by designation.
2 KING V. UNITED STATES
SUMMARY**
Criminal Law
The panel dismissed as moot an appeal from a revocation
of supervised release.
The panel held that the appeal was moot because the
Bureau of Prisons had unconditionally released the defendant
from custody, and his sentence was complete. The panel
found insufficient to avoid mootness the collateral
consequence that the revocation charge, which involved a
finding that the defendant committed statutory rape, could
require him to register as a sex offender in the future.
COUNSEL
Carmen A. Smarandoiu (argued), Chief, Appellate Unit;
Daniel P. Blank, Senior Litigator; Steven G. Kalar, Federal
Public Defender; Office of the Federal Public Defender, San
Francisco, California; for Defendant-Appellant.
Philip Kopczynski (argued), Assistant United States
Attorney; J. Douglas Wilson, Chief, Appellate Division; Alex
G. Tse, Acting United States Attorney; United States
Attorney’s Office, San Francisco, California; for Plaintiff-
Appellee.
**
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
KING V. UNITED STATES 3
OPINION
MUELLER, District Judge:
This appeal arises from a revocation of supervised
release. In January 2017, after an evidentiary hearing on
statutory rape allegations, the district court revoked Marcel
King’s term of supervised release and sentenced him to
24 months in prison. On appeal, King argues the district
court violated his due process rights by excluding him from
the courtroom for a portion of the minor victim’s testimony
and by admitting into evidence a hearsay report without live
witness authentication.
King’s appeal was fully briefed on October 31, 2017. On
January 5, 2018, the Bureau of Prisons unconditionally
released him from custody. His sentence is complete. The
government argues King’s appeal is now moot because King
identifies no “ongoing” collateral consequences caused by his
revocation. King counters that he does face collateral
consequences, namely, the potential that his revocation
charge, which involved a finding that he committed statutory
rape, could require him to register as a sex offender and could
affect his ability to visit his children.
Although King raises a novel collateral consequences
argument, the consequences he identifies are, under
controlling case law, inadequate to maintain his case here. As
explained below, this appeal is MOOT.
I.
In the parole revocation context, the Supreme Court has
held that without proof of ongoing collateral consequences
4 KING V. UNITED STATES
from that revocation, an unconditional release from custody
moots a defendant’s challenge to his allegedly erroneous
revocation. Spencer v. Kemna, 523 U.S. 1, 8–16 (1998). Our
Circuit has not extended Spencer to the supervised release
revocation context in a precedential opinion. In United States
v. Palomba, 182 F.3d 1121, 1123 (9th Cir. 1999), we did cite
Spencer in dismissing for lack of standing a defendant’s
challenge to the sentencing court’s criminal history score
calculation. In that case, because Palomba challenged only
the length of his “now-completed” term of prison and
supervised release—and not the “correctness of [his]
conviction”—he lacked standing unless he could show the
alleged miscalculation caused collateral consequences. Id.
In United States v. Verdin, 243 F.3d 1174, 1177–79 (9th Cir.
2001), we distinguished Spencer because, in Verdin, the
appellant was still facing conditions of supervision after his
release from custody.1
Other Circuits to address the question have applied
Spencer uniformly to appeals from supervised release
revocations. See, e.g., United States v. Hardy, 545 F.3d 280,
284 (4th Cir. 2008); United States v. Jackson, 523 F.3d 234,
241 (3d Cir. 2008); United States v. Mazzillo, 373 F.3d 181,
182–83 (1st Cir. 2004); United States v. Meyers, 200 F.3d
715, 721 n.2 (10th Cir. 2000); United States v. Clark,
1
A number of our unpublished decisions have cited Spencer,
Palomba or both to summarily dismiss as moot appeals from supervised
release revocations where the supervised release sentence imposed had
already ended and no cognizable collateral consequences were identified.
See, e.g., United States v. Falcon, 693 F. App’x 681, 682 (9th Cir. 2017);
United States v. Moore, 691 F. App’x 873 (9th Cir. 2017); United States
v. Rodriguez-Barcenas, 687 F. App’x 563, 564 (9th Cir. 2017); United
States v. Thomas, 122 F. App’x 352, 353 (9th Cir. 2005).
KING V. UNITED STATES 5
193 F.3d 845, 847–48 (5th Cir. 1999) (per curiam); United
States v. Probber, 170 F.3d 345, 347–49 (2d Cir. 1999).
Supervised release differs from parole in some respects.
Supervised release “follows a term of imprisonment”; parole
conditionally “shorten[s]” a term of imprisonment. United
States v. Kincade, 379 F.3d 813, 817 n.2 (9th Cir. 2004) (en
banc); see also Morrissey v. Brewer, 408 U.S. 471, 477
(1972) (“The essence of parole is release from prison, before
the completion of sentence, on the condition that the prisoner
abide by certain rules during the balance of the sentence.”);
Johnson v. United States, 529 U.S. 694, 697 (2000) (defining
supervised release as “a form of postconfinement monitoring”
that “follow[s] imprisonment”). And supervised release is
administered and enforced by a sentencing court; parole is
generally administered by an independent commission or
board. See id. at 696–97; see generally 18 U.S.C. § 3583.
But Spencer’s reasoning does not rely on the aspects of
parole that differ from supervised release. Spencer held that
“some concrete and continuing injury other than the now-
ended incarceration or parole—some ‘collateral consequence’
of the conviction—must exist if [a] suit is to be maintained.”
523 U.S. at 7. Spencer was “willing to presume that a
wrongful criminal conviction has continuing collateral
consequences”; “[i]n the context of criminal conviction the
presumption of collateral consequences is likely to comport
with reality.” Id. at 8, 12. But the Court did not “extend[]”
that presumption “to challenges of parole termination,” even
when the basis for parole termination was a sex crime. Id.
at 12; see also id. at 5. Spencer reasoned that the collateral
consequences of parole revocations—in employment, future
parole decisions, and future sentencing decisions—are more
speculative than the “obvious” “civil disabilities” that result
6 KING V. UNITED STATES
from criminal convictions. Id. at 12–13. This reasoning
applies equally to revocation of supervised release, which
does not concern any of the “civil disabilities” that
distinguish the collateral consequences of criminal
convictions from revocation proceedings. We are therefore
bound by Spencer.
Because King has been released from custody with no
supervision conditions, Spencer’s mootness standard applies.
II.
Unless King can show his revocation is causing “some
concrete and continuing injury other than the now-ended
incarceration,” his claim is moot. See Spencer, 523 U.S. at 7.
In other words, the court does not “presume” King’s
revocation causes collateral consequences adequate to state
an injury-in-fact once he is released from custody; King now
has the burden to “demonstrate[]” he is facing collateral
consequences. Id. at 14.
King has not met his burden. He contends that because
his revocation was based on a finding that he committed
statutory rape, he may be forced in the future to register as a
sex-offender, which could affect his ability to visit his own
children. Although sex-offender registration is a collateral
consequence of a criminal conviction for statutory rape, see,
e.g., Williamson v. Gregoire, 151 F.3d 1180, 1182–83 (9th
Cir. 1998), King was not convicted of statutory rape. Rather,
in a supervised release revocation proceeding, the district
court found by a preponderance of the evidence that King
violated a state law criminalizing statutory rape, and then
revoked King’s term of supervision. King argues he
nonetheless faces a “real and present danger” that the charge
KING V. UNITED STATES 7
underlying his revocation, though not leading to a conviction,
may soon subject him to registration.
To support his argument, King cites laws throughout the
United States that have extended sex registry requirements
beyond criminal convictions. He points to five state laws
requiring sex offender registration by a defendant who was
charged with committing a registrable offense, but later found
not guilty by reason of insanity. See Cal. Pen. Code
§ 290.004; Colo. Rev. Stat. § 16-8-115(4)(a); 730 Ill. Comp.
Stat. 150/2, 150/3; N.J. Stat. Ann. § 2C:7-2(a)(1); Wash. Rev.
Code § 9A.44.130. He identifies laws mandating sex
offender registration based on criminal convictions suffered
in foreign jurisdictions, where certain due process protections
may not have applied. See Neb. Rev. Stat. § 29-4003; 730 Ill.
Comp. Stat. 150/2 (A)(1)(a). He also refers to a law
mandating registration for defendants initially charged with
committing a registrable offense, but then convicted of a
different offense arising from the “same set of
circumstances.” See Minn. Stat. § 243.166 subd. 1b.
Identifying a trend of extending registration requirements he
says these state laws represent, King argues the trend may
soon reach him and others whose supervised release
revocations are based on a finding they committed a
registrable offense.
King’s argument raises a novel question. How likely
must the future possibility of a requirement of sex-offender
registration be for there to be an injury-in-fact? The question
is an important one because the Supreme Court has
determined that certain sex-offender registration requirements
are nonpunitive. They therefore may be broadened on an
ongoing basis and applied retroactively to those who were
convicted earlier of a registrable offense. See Smith v. Doe,
8 KING V. UNITED STATES
538 U.S. 84, 105–06 (2003) (because Alaska’s statute
broadening the reach and accessibility of sex offender registry
was “nonpunitive . . . its retroactive application d[id] not
violate the Ex Post Facto Clause.”).
King need not wait until his name is etched on a registry
to argue he has suffered collateral consequences. But he must
show registration is more than “a matter of speculation.”
Spencer, 523 U.S. at 16. This he has not done. In sentencing
him on his revocation, the district court did not impose a sex-
offender registration condition. King has not identified any
existing or impending laws extending sex-offender
registration requirements to defendants whose supervised
release or parole revocations were based on a finding of
commission of a registrable offense. He has not said he plans
to move to a state where the risk of a future registration
requirement is high. On this record, the future registration
requirement King hypothesizes is too remote to constitute the
“concrete and continuing injury” required to avoid mootness.
Spencer, 523 U.S. at 7.
This conclusion applies equally to King’s argument that
the consequences of his revocation may hinder his ability to
visit his own children. The record contains no information on
an existing custody arrangement, or any statutory or factual
suggestion that any such arrangement may be in jeopardy as
a result of King’s revocation charge. To the extent King
argues the potential for a registration requirement in the
future could affect his visitation rights, the argument fails for
the reasons discussed above with respect to a hypothetical
threshold registration requirement.
KING V. UNITED STATES 9
III.
Because King has fully completed the sentence imposed
for his revocation of supervised release and has identified
only speculative and hypothetical collateral consequences
flowing from the charge underlying his revocation, this
appeal is MOOT. We therefore do not reach the merits of
King’s challenge to his revocation hearing on due process
grounds.
King’s appeal is DISMISSED as moot.