United States v. Carl Bennett

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[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 21-11599
Non-Argument Calendar
____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
CARL BENNETT,
Defendant-Appellant.
____________________
Appeal from the United States District Court
for the Southern District of Georgia
D.C. Docket No. 4:05-cr-00008-WTM-CLR-1
____________________
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2 Opinion of the Court 21-11599
Before JORDAN, NEWSOM, and LAGOA, Circuit Judges.
PER CURIAM:
Carl Bennett appeals the revocation of his supervised release
and subsequent sentence of 14 months’ imprisonment, followed by
24 months of supervised release. On appeal, Bennett argues that
the district court plainly erred when it questioned him during his
allocution at the revocation hearing, in violation of his privilege
against compelled self-incrimination and due process rights. The
government in response argues that Bennett’s appeal is moot be-
cause he has completed his incarceration term and does not chal-
lenge his current term of supervised release. As explained below,
we affirm.
I.
Questions of constitutional law are reviewed de novo.
United States v. Whatley, 719 F.3d 1206, 1213 (11th Cir. 2013). In
reviewing a sentencing court’s revocation of supervised release,
the “court’s findings of fact are binding on this [C]ourt unless
clearly erroneous.” United States v. Almand, 992 F.2d 316, 318
(11th Cir. 1993) (quoting United States v. Granderson, 969 F.2d 980,
982 (11th Cir. 1992)); accord United States v. Forbes, 888 F.2d 752,
754 (11th Cir. 1989).
Plain-error review applies to a sentencing challenge raised
for the first time on appeal. United States v. Henderson, 409 F.3d
1293, 1307 (11th Cir. 2005). To establish plain error, a defendant
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21-11599 Opinion of the Court 3
must show there is “(1) error, (2) that is plain, and (3) that affects
substantial rights.” Id. If all three factors are established, this Court
may exercise its discretion to correct the error if it seriously affects
the fairness, integrity, or public reputation of judicial proceedings.
Id. An error is plain if it is clearly contrary to settled law. Id. If this
Court would have to speculate about whether the result would
have been different, the defendant has not met his burden of show-
ing prejudice. United States v. Rodriguez, 398 F.3d 1291, 1301
(11th Cir. 2005).
The issue of whether a case is moot is a question of law re-
viewed de novo. Mattern v. Sec’y for Dep’t of Corr., 494 F.3d 1282,
1285 (11th Cir. 2007). “A case on appeal becomes moot, and ceases
to be a case or controversy, ‘when it no longer presents a live con-
troversy with respect to which the court can give meaningful re-
lief.’” United States v. Al-Arian, 514 F.3d 1184, 1189 (11th Cir. 2008)
(quoting Al Najjar v. Ashcroft, 273 F.3d 1330, 1336 (11th Cir. 2001)).
To overcome a claim of mootness, a defendant who wishes to chal-
lenge an expired sentence must show that he suffers from a “collat-
eral consequence” of his sentence. United States v. Juv. Male, 564
U.S. 932, 936 (2011). The collateral consequence must be “an ac-
tual injury traceable to the [sentence] and likely to be redressed by
a favorable” outcome on appeal. Id. (quoting Spencer v. Kenma,
523 U.S. 1, 7 (1998)).
A sentencing appeal is generally moot when the sentence al-
ready has been served. United States v. Farmer, 923 F.2d 1557,
1568 (11th Cir. 1991). However, even if a sentence of
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4 Opinion of the Court 21-11599
imprisonment has already been served, an appeal is not moot if
success on appeal could alter the supervised release portion of a
defendant’s sentence. Compare Dawson v. Scott, 50 F.3d 884, 886
n.2 (11th Cir. 1995) (holding that, even though the defendant had
completed his incarceration term, his appeal was not moot
“[b]ecause success for Dawson could alter the supervised release
portion of his sentence”), with Farmer, 923 F.2d at 1568 (explaining
that an appeal was moot where Farmer “ha[d] not advanced any
argument that ‘there may be benefits in having his sentence re-
duced after he ha[d] already served that sentence’” and was not on
supervised release (omission adopted) (quoting North Carolina v.
Rice, 404 U.S. 244, 248 (1971))). Because the question of mootness
is jurisdictional in nature, it may be raised by the court sua sponte,
regardless of whether a party briefed the issue. Nat’l Advert. Co.
v. City of Miami, 402 F.3d 1329, 1331–32 (11th Cir. 2005). We are
obligated to review sua sponte whether we have jurisdiction at any
point in the appellate process. United States v. Lopez, 562 F.3d
1309, 1311 (11th Cir. 2009).
II.
Because probation and supervised release are, in fact, con-
ceptually the same, courts treat revocations the same whether they
involve probation or supervised release. United States v. Frazier,
26 F.3d 110, 113 (11th Cir. 1994). A defendant’s supervised release
may be revoked if the district court “finds by a preponderance of
the evidence that the defendant violated a condition of supervised
release.” 18 U.S.C. § 3583(e)(3).
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21-11599 Opinion of the Court 5
The Fifth Amendment provides that “[no] person . . . shall
be compelled in any criminal case to be a witness against himself.”
U.S. Const. amend. V. “Because the revocation of supervised re-
lease is ‘not a stage of a criminal prosecution,’ ‘the full panoply of
rights due to a defendant’ in criminal prosecutions ‘does not apply
to revocations’” of supervised release. United States v. Dennis,
26 F.4th 922, 927 (11th Cir. 2022) (omission adopted) (first quoting
Gagnon v. Scarpelli, 411 U.S. 778, 782 (1973); then quoting Mor-
risey v. Brewer, 408 U.S. 471, 480 (1972)). Regardless of whether
the answer to a question is compelled by the threat of revocation,
the privilege against self-incrimination is not available to a defend-
ant during a supervised-release-revocation hearing when there is
no threat of a separate criminal prosecution. See Minnesota v.
Murphy, 465 U.S. 420, 435 n.7 (1984).
The Fourteenth Amendment due process provisions con-
template that a revocation hearing “must comport with principles
of fundamental fairness.” United States v. Taylor, 605 F.2d 851,
853 (5th Cir. 1979). Thus, a defendant must be afforded “certain
minimal due process requirements” during a revocation hearing.
Frazier, 26 F.3d at 114. The minimum due process requirements
include: (a) written notice of the claimed violations; (b) disclosure
of the evidence against the person; (c) an opportunity to be heard
in person and to present evidence; (d) the right to confront and
cross-examine witnesses; (e) a “neutral and detached” hearing
body; and (f) a written statement by the factfinders indicating the
evidence upon which they relied and their reasons for revoking
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supervision. Morissey, 408 U.S. at 488–89; see also Fed. R. Crim.
P. 32.1(b)(2).
Here, we conclude that this appeal is not rendered moot by
Bennett’s completion of his incarceration term, as a favorable out-
come in this appeal would impact the date his current supervised-
release term ends. See Dawson, 50 F.3d at 866 n.2.
Nevertheless, even assuming, arguendo, that Bennett could
show that the court committed error that was plain by questioning
him in violation of his privilege against compelled self-incrimina-
tion and due process rights, he cannot establish that the error af-
fected his substantial rights. See Henderson, 409 F.3d at 1307. In-
deed, it is unclear whether he would have received a shorter prison
sentence without the district court’s alleged improper questioning.
See Rodriguez, 398 F.3d at 1301.
Accordingly, we affirm the district court.
AFFIRMED.