United States v. Timothy Jevon Sewell

Case: 17-10637 Date Filed: 10/20/2017 Page: 1 of 7
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 17-10637
Non-Argument Calendar
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D.C. Docket No. 2:03-cr-00232-WKW-SRW-1
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
TIMOTHY JEVON SEWELL,
a.k.a. Timothy Sewel,
a.k.a. Glen Armstrong,
a.k.a. Jerome Sewell,
Defendant - Appellant.
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Appeal from the United States District Court
for the Middle District of Alabama
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(October 20, 2017)
Before TJOFLAT, JORDAN, and ROSENBAUM, Circuit Judges.
PER CURIAM:
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In 2004, a jury convicted Timothy Sewell of conspiracy to distribute
methamphetamine, possession with intent to distribute methamphetamine, and
possession of a firearm by a convicted felon. 21 U.S.C. §§ 841(a)(1) and 846; 18
U.S.C. § 922(g)(1). Sewell had his original sentence of 250 months’ imprisonment
vacated after succeeding in an action under 28 U.S.C. § 2255. At resentencing, the
District Court imposed a 188-month sentence, which exceeded the guideline range,
and five years of supervised release. He appeals that sentence.
On appeal, Sewell advances two arguments. First, he contends that his
sentence was substantively unreasonable. Second, he argues that his supervised
release condition—which requires him to register as a sex offender under the Sex
Offender Registration and Notification Act (“SORNA”)—violates the Ex Post
Facto Clause of the United States Constitution. U.S. Const. art I, § 9, cl. 3. We
dismiss the first challenge as moot. We reject the second as foreclosed by
precedent.
I.
We first note that Sewell has served the challenged sentence. Records
indicate that Sewell was released from custody on August 18, 2017. See Federal
Bureau of Prisons Inmate Locator.1 Although the parties have not addressed
1
BOP Inmate Locator, available at https://www.bop.gov/inmateloc/.
2
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mootness,2 we consider it sua sponte because it is a jurisdictional issue. National
Advert. Co. v. City of Miami, 402 F.3d 1329, 1331–32 (11th Cir. 2005) (noting that
mootness “may be raised by the court sua sponte, regardless of whether the district
court considered it or if the parties briefed the issue”). Mootness is a question of
law that receives de novo review. Id. at 1331.
Article III of the United States Constitution limits federal courts’ jurisdiction
to “Cases” and “Controversies.” U.S. Const. art. III, § 2, cl. 1. “A case on appeal
becomes moot, and ceases to be a case or controversy, when it no longer presents a
live controversy with respect to which the court can give meaningful relief.”
United States v. Al-Arian, 514 F.3d 1184, 1189 (11th Cir. 2008). Therefore, the
court must resolve the question before assuming jurisdiction. Id. The
“fundamental question” is whether events subsequent to the filing of the appeal
deprive the court of the ability to grant the appellant “meaningful relief.” Id.
A sentencing appeal is generally moot when the sentence has already been
served. See United States v. Farmer, 923 F.2d 1557, 1568 (11th Cir. 1991). When
a defendant challenges a sentence that has been fully served, the court will dismiss
the appeal unless the defendant demonstrates some “collateral consequences”
flowing from his sentence. See Spencer v. Kemna, 523 U.S. 1, 3, 14–17, 118 S. Ct.
978, 981, 986–88 (1998) (dismissing as moot a habeas petitioner’s challenge to his
2
Both parties filed their briefs prior to Sewell’s release, and neither has made any
subsequent filings.
3
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parole revocation, when he had already served the underlying sentence, because he
failed to show sufficient collateral consequences stemming from the revocation);
Minnesota v. Dickerson, 508 U.S. 366, 371, 113 S. Ct. 2130, 2135 n.2 (1993)
(“[T]he possibility of a criminal defendant’s suffering collateral legal
consequences from a sentence already served precludes a finding of mootness.”)
(internal quotation marks and citations omitted); Farmer, 923 F.2d at 1568
(dismissing as moot defendant’s sentencing issue on direct appeal because he
completed his sentence and “ha[d] not advanced any argument that there may be
benefits . . . in having his sentence reduced” after he served it) (internal quotation
marks omitted). Nevertheless, we have declined to dismiss as moot challenges to
sentences when the challengers were on supervised release and success on appeal
could alter the supervised release portion of their sentences. See Dawson v. Scott,
50 F.3d 884, 886 n.2 (11th Cir. 1995); United States v. Page, 69 F.3d 482, 487 n.4
(11th Cir. 1995).
Here, Sewell challenges his 188-month sentence—an upward variance from
the guideline range—as substantively unreasonable. Sewell’s success on his
sentence appeal would not affect the supervised release portion of his sentence.
Like the petitioners in Dawson and Page, Sewell remains on supervised release.
But in those cases, the appeals were not moot because the defendants’ success
could alter their supervised release. See Dawson, 50 F.3d at 886 n.2; Page, 69
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F.3d at 487 n.4. As for Sewell, regardless of the length of his sentence, the
maximum authorized term of supervision is five years. U.S.S.G. § 5D1.2(a)(1)
(providing for a term of supervised release of at least two years but not more than
five years for a defendant convicted of a Class A or B felony); Presentence
Investigation Report at 1 (designating Counts I and II here as Class B felonies and
Count IV as a Class A felony). Thus, if Sewell was to prevail, and we held that the
sentencing judge abused his discretion by imposing a substantively unreasonable
prison sentence, his position would not change. See United States v. Irey, 612 F.3d
1160, 1165 (11th Cir. 2010) (en banc) (explicating the proper standard of review).
Nothing in the record suggests that if the District Court had imposed a shorter
sentence, it would also have imposed a shorter or less restrictive period of
supervised release. As a result, we cannot provide Sewell with meaningful relief.
See Al-Arian, 514 F.3d at 1189. Finally, Sewell makes no arguments on this issue,
and thus has not made the required showing of collateral consequences. See
Spencer, 523 U.S. at 14–17, 118 S. Ct. 978 at 896–88 (asking “whether petitioner
demonstrated [collateral] consequences”) (emphasis added). Sewell’s sentencing
challenge is moot and this portion of his appeal dismissed.
II.
Sewell next challenges the condition of his supervised release requiring him
to register as a sex offender under SORNA. Specifically, he argues that because
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SORNA was not enacted until 2006, and his two sexual offense convictions
occurred before SORNA’s enactment, applying SORNA’s registration
requirements to him violates the Ex Post Facto Clause of the United States
Constitution. According to Sewell, this amounts to unconstitutional retroactive
punishment because it makes the punishment for his two prior sex offenses more
burdensome. 3
But as Sewell himself admits, this argument is foreclosed by this Court’s
decision in United States v. W.B.H., 664 F.3d 848, 860 (11th Cir. 2011). In that
case, we considered and rejected an ex post facto attack on SORNA’s registration
requirement. Id. Like Sewell, the challenger in W.B.H. had to, as a condition of
his supervised release, register as a sex offender because of a sex offense
conviction prior to SORNA’s enactment. Id. at 851. We rejected that challenge
pursuant to the Supreme Court’s decision in Smith v. Doe, 538 U.S. 84, 123 S. Ct.
1140 (2003). We reasoned that because SORNA was not punitive as applied, the
Ex Post Facto Clause had not been violated. W.B.H., 664 F.3d at 860; see also
Smith, 538 U.S. at 92–94, 123 S. Ct. at 1146–48. Sewell nevertheless argues
W.B.H. was wrongly decided.
3
This portion of Sewell’s appeal is not moot. Sewell is serving out his period of
supervision, which includes the registration requirement. Finding that requirement
unconstitutional would alter the condition of his supervised release, providing him with
meaningful relief. See Dawson, 50 F.3d at 886 n.2, Al-Arian, 514 F.3d at 1189. We therefore
have jurisdiction over this portion of Sewell’s appeal.
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Yet as Sewell admits, W.B.H. binds this Court under the prior precedent
rule. 4 United States v. Archer, 531 F.3d 1347, 1352 (11th Cir. 2008) (“[A] prior
panel’s holding is binding on all subsequent panels unless and until it is overruled
or undermined to the point of abrogation by the Supreme Court or by this court
sitting en banc.”). Thus, we need not consider Sewell’s argument that W.B.H. was
wrongly decided, and affirm this portion of his appeal.
DISMISSED IN PART, AFFIRMED IN PART.
4
We note that Sewell apparently includes this argument to “preserve the issue for review
in case the Supreme Court, or this Court sitting en banc, later reconsiders its precedent.”
7