United States v. Goldberg

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 07a0648n.06
Filed: September 4, 2007
Case No. 06-3933
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
UNITED STATES OF AMERICA, )
)
Plaintiff-Appellee, )
) ON APPEAL FROM THE
v. ) UNITED STATES DISTRICT
) COURT FOR THE NORTHERN
SHELDON A. GOLDBERG, ) DISTRICT OF OHIO
)
Defendant-Appellant. )
)
_______________________________________ )
)
)
BEFORE: BATCHELDER and COLE, Circuit Judges; PHILLIPS*, District Judge.
THOMAS W. PHILLIPS, District Judge. Defendant Sheldon Goldberg appeals his
sentence following conviction for conspiracy to commit mail fraud, aiding and abetting mail fraud,
and selling and aiding and abetting the sale of stolen vehicles, two of which offenses are Class C
felonies. Because defendant’s period of incarceration has expired, we conclude that the appeal is
now moot.
After entering a plea of guilty to conspiracy to commit mail fraud and transporting and selling
falsely reported stolen vehicles, defendant was sentenced to five months of incarceration and five
months of home confinement followed by two years of supervised release. Review of the record
*
The Honorable Thomas W . Phillips, United States District Judge for the Eastern District of Tennessee,
sitting by designation.
shows that defendant does not challenge his conviction. Rather, the only aspect of his sentence that
defendant challenges is the imposition of a five month term of imprisonment. The five month
sentence expired on or about January 1, 2007. Consequently, the matter is now moot. See Lane v.
Williams, 455 U.S. 624, 631 (1982). “If a prisoner does not challenge the validity of the conviction
but rather only challenges his sentence or some aspect of it, the request for relief is moot once the
challenged portion of the sentence has expired.” United States v. Manogg, 1993 U.S. App. LEXIS
6980, *2 (6TH Cir. Mar. 26, 1993) (citing Lane, 455 U.S. at 631).
Moreover, even if the time the defendant served in prison was found to be excessive, that
time cannot be credited to the defendant’s time of supervised release. See United States v. Johnson,
529 U.S. 53, 60 (2000). Therefore, defendant’s period of supervised release would still be two years
and there is no relief which can be granted to him. See U.S.S.G. § 5D1.2(a)(2) (“[I]f a term of
supervised release is ordered, the length of the term shall be: . . . (2) At least two years but not more
than three years for a defendant convicted of a Class C or D felony.”). Because defendant has shown
no injury which can be redressed, his appeal is dismissed as moot.
2