United States v. Hernandez-Banega

FILED
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS March 28, 2017
Elisabeth A. Shumaker
TENTH CIRCUIT Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 16-1061
(D.C. No. 1:15-CR-00329-WYD-1)
(D. Colo.)
JIMMY JOEL
HERNANDEZ-BANEGA, a/k/a Jimmy
Cruz, a/k/a Jimmy Diaz, a/k/a Jimmy
Diaz-Cruz,
Defendant - Appellant.
ORDER
Before HOLMES, MURPHY, and PHILLIPS, Circuit Judges.
Defendant-Appellant Jimmy Joel Hernandez-Banega challenges his twenty-
month term of imprisonment and three-year period of supervised release. He
argues that the district court improperly applied a twelve-level sentencing
enhancement under U.S. Sentencing Guidelines § 2L1.2(b)(1)(B).
On March 15, 2017, however, the government filed a notice advising our
court that Mr. Hernandez-Banega was deported to Honduras following completion
of the custodial portion of his sentence. Although Mr. Hernandez-Banega
remains legally subject to a term of supervised release, his deportation means that
he “has no obligation to report to a probation officer and is not under the
supervision or control of the United States Probation Office.” United States v.
Vera-Flores, 496 F.3d 1177, 1181 (10th Cir. 2007). Mr. Hernandez-Banega’s
removal has therefore “eliminated all practical consequences associated with
serving a term of supervised release,” id. at 1181, and he has no “actual injury
which this court can remedy,” id. at 1182. Similarly, Mr. Hernandez-Banega “has
failed to demonstrate the presence of collateral consequences arising from any
alleged errors the . . . district court made during [his] sentencing proceeding.” Id.
And the mere possibility of his reentry (along with the attendant revival of his
obligation to comply with his supervised-release conditions) is too speculative to
avoid dismissal for mootness. See id. at 1181–82.
Accordingly, Mr. Hernandez-Banega’s removal has rendered this appeal
moot. See id. at 1182 (dismissing an appeal on mootness grounds following
deportation); see also United States v. Pena-Flores, 240 F. App’x 281, 283 (10th
Cir. 2007) (same), cert. denied, 552 U.S. 1281 (2008). Therefore, this appeal is
DISMISSED.
Entered for the Court,
ELISABETH A. SHUMAKER, Clerk
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