United States v. Pena-Flores

F IL E D
United States Court of Appeals
Tenth Circuit
U N IT E D ST A T E S C O U R T O F A PP E A L S
September 4, 2007
T E N T H C IR C U IT
Elisabeth A. Shumaker
Clerk of Court
U N ITED STA TES O F A M ER ICA,
Plaintiff-Appellee, No. 06-2242
v. (D. New M exico)
ED GAR JESUS PEÑA-FLO RES, (D.C. No. 06-CR-1048-RB)
Defendant-Appellant.
O R D E R A N D JU D G M E N T *
Before B R ISC O E , H O L LO W A Y , and M U R PH Y , Circuit Judges.
I. Introduction
Edgar Peña-Flores, a citizen of M exico, pleaded guilty to illegal reentry of
a removed alien and received a sentence of twelve months and one day, followed
by one year of supervised release. W hile the appeal of his sentence was pending,
Peña-Flores completed his term of imprisonment and was removed from the
*
This order and judgment is not binding precedent except under the
doctrines of law of the case, res judicata, and collateral estoppel. It may be cited,
however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th
Cir. R. 32.1.
United States. Because Peña-Flores’ removal from the United States has rendered
his appeal moot, this court lacks jurisdiction and dism isses the appeal.
II. Background
Peña-Flores pleaded guilty to one count of illegal reentry of a removed
alien, in violation of 8 U.S.C. § 1326(a). A presentence report (“PSR”) was
prepared, which recommended a total offense level of ten and a criminal history
category of IV . In calculating Peña-Flores’ offense level, the PSR applied a four-
level enhancement for having been deported after a felony conviction. USSG
§ 2L1.2(b)(1)(D). The enhancement was based on a prior Arizona conviction for
aggravated driving under the influence. See Ariz. Rev. Stat. § 28-1383(A )(1).
Peña-Flores filed objections to the PSR, arguing his prior conviction should not
be characterized as a felony for purposes of the four-level enhancement. The
district court rejected this argument and found Peña-Flores’ total offense level
was ten. After reducing Peña-Flores’ criminal history category from IV to III, the
district court arrived at an advisory guideline range of tw elve to eighteen months.
It then sentenced him to a term of imprisonment of twelve months and one day,
follow ed by supervised release “for a term of [one] year unsupervised.” On
appeal, Peña-Flores challenges only his sentence, arguing his prior conviction
should have been treated as a misdemeanor for purposes of § 2L1.2(b).
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W hile this case was pending on appeal, Peña-Flores completed his term of
imprisonment and w as removed from the U nited States. Follow ing Peña-Flores’
removal, this court ordered the parties to show cause why the appeal should not
be dismissed as moot. Relying on United States v. Castro-Rocha, 323 F.3d 846,
847-48 n.1 (10th Cir. 2003), both parties agreed the appeal was not moot because
Peña-Flores was serving a term of supervised release that could be reduced or
eliminated by a favorable appellate decision. This court, however, is not bound
by the government’s apparent concession as to mootness. See Steel Co. v.
Citizens for a Better Env’t, 523 U.S. 83, 95 (1998) (“Every federal appellate court
has a special obligation to satisfy itself not only of its own jurisdiction, but also
that of the low er courts in a cause under review, even though the parties are
prepared to concede it.” (quotation omitted)).
III. A nalysis
The question of mootness in this case is squarely controlled by this court’s
recent decision in United States v. Vera-Flores, 2007 W L 2247660 (10th Cir.
Aug. 7, 2007). Although Peña-Flores is technically still subject to a one-year
term of supervised release, he is not actually under the supervision or control of
the United States Probation Office because he is no longer in the United States.
Like the defendant in Vera-Flores, Peña-Flores’ removal to M exico “has
eliminated all practical consequences associated with serving a term of supervised
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release,” and therefore, Peña-Flores has no “actual injury likely to be redressed by
a favorable judicial decision” Id. at *3. Nor has Peña-Flores satisfied his burden
of demonstrating sufficient collateral consequences arising from the district
court’s sentencing decision and imposition of supervised release. Id. The
possibility that Peña-Flores could law fully reenter the United States during his
term of supervised release, thus reviving his obligations to comply with the
supervised release conditions, is too speculative to avoid dismissal for mootness.
Id.
IV . C onclusion
For the foregoing reasons, this court dism isses the appeal of the sentence
imposed by the district court.
ENTERED FOR THE COURT
M ichael R. M urphy
Circuit Judge
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