United States of America v. Patrick K. Mazzillo

*Of the Eighth Circuit, sitting by designation.
United States Court of Appeals
For the First Circuit
No. 03-2289
UNITED STATES OF AMERICA,
Appellee,
v.
PATRICK K. MAZZILLO,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. D. Brock Hornby, U.S. District Judge]
Before
Selya, Circuit Judge,
John R. Gibson,* Senior Circuit Judge,
and Howard, Circuit Judge.
Mary A. Davis with whom Tisdale & Davis, P.A. was on brief,
for appellant.
Margaret D. McGaughey, Appellate Chief, with whom Paula D.
Silsby, United States Attorney, was on brief for appellee.
June 28, 2004

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Per Curiam. Patrick Mazzillo appeals the revocation of
his supervised release and resulting imprisonment. Mazzillo
pleaded guilty to conspiracy to possess heroin with the intent to
distribute and was sentenced to eight months in prison and three
years of supervised release. One condition for Mazzillo's
supervised release was that he not engage in criminal conduct. The
district court found that Mazzillo violated this condition by
possessing controlled substances. As a result, the court revoked
his supervised release and sentenced him to an additional eight
months of imprisonment. The court also ordered that upon
Mazzillo's "release from imprisonment, [his] term of supervised
release shall be terminated." Bureau of Prisons records indicate
that Mazzillo completed serving his sentence on March 29, 2004.
This case was argued and taken under advisement by this court on
April 6, 2004.
Based on these facts, we questioned our jurisdiction to
decide this appeal because the question of the propriety of the
revocation order appeared moot. See Matos v. Clinton Sch. Dist.,
367 F.3d 68, 72 (1st Cir. 2004) ("[A] cognizable case or
controversy must exist not merely at the time an appeal is taken,
but at all subsequent stages of appellate review."); García-
Velazquez v. Frito Lay Snacks Carribean, 358 F.3d 6, 8 (1st Cir.
2004) (stating that an appellate court has an obligation to satisfy
itself of jurisdiction in every case). We ordered Mazzillo to show

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cause why we shouldn’t conclude that a live controversy no longer
existed. Mazzillo responded that under prevailing case law his
appeal was moot but asked us nevertheless to consider the appeal
under the rule that courts may review otherwise moot cases where
the issue is capable of repetition but will evade review. See S.
Pac. Terminal Co. v. ICC, 219 U.S. 498, 514 (1911). We decline the
invitation. An appeal from an order revoking supervised release is
ordinarily moot if the sentence is completed before the appeal is
decided. See Spencer v. Kemna, 523 U.S. 1, 18 (1998) (declaring
moot a challenge to an allegedly erroneous parole revocation
because the defendant had already served his entire sentence);
United States v. Myers, 200 F.3d 715, 723 (10th Cir. 2000)
(declaring moot a challenge to a revocation of supervised release
where the defendant completed the term of imprisonment resulting
from the revocation); United States v. Clark, 193 F.3d 845, 847-48
(5th Cir. 1999) (per curiam) (applying Spencer to dismiss as moot
a challenge to the district court's extension of supervised
release); United States v. Probber, 170 F.3d 345, 348-49 (2d Cir.
1999) (applying Spencer and dismissing as moot a challenge to the
district court's revocation of supervised release). Because
Mazzillo does not dispute that he has completed his sentence and
has provided no adequate legal basis for distinguishing or
departing from the cited authority, his appeal is moot.

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Mazzillo's claim does not fall within the exception to
the mootness doctrine for cases that are capable of repetition but
will evade review. This doctrine is reserved for cases in which
the party asking the court to exercise jurisdiction can demonstrate
that "(1) the challenged action is in its duration too short to be
fully litigated prior to cessation or expiration, and (2) there is
a reasonable expectation that the same complaining party will be
subject to the same action again." United States v. Reid,
--F.3d--, 2004 WL 1197360 (1st Cir. May 27, 2004) (quoting
Spencer, 523 U.S. at 17). Mazzillo's claim fails this second
prong because there is no reason to expect that he will again face
the revocation of a supervised release period.
The Supreme Court addressed a similar claim in Weinstein
v. Bradford, 423 U.S. 147, 149 (1975) (per curiam). There, a
prisoner sued the North Carolina Board of Parole concerning the
procedures by which the Board granted parole requests. Id. at 147.
While the appeal was pending, the prisoner was granted parole,
thereby mooting the case. The Supreme Court rejected the
prisoner's argument that his appeal nevertheless could be
considered under "the capable of repetition, yet evading review"
exception because there was "no demonstrated probability that the
respondent" would again be eligible for parole. Id. at 419.
Similarly, Mazzillo has not demonstrated that he will ever be in
the position of challenging an order revoking his supervised

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1 We note also that it was not a foregone conclusion that
Mazzillo's sentence would have expired before we could have decided
his appeal. He could have moved to stay the imposition of sentence
pending appeal and/or moved for expedited consideration of his
appeal. He did neither.
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release.1 See Arnold v. Panora, 593 F.2d 161, 164 (1st Cir. 1979)
(stating that case does not fall within second Weinstein exception
where there was no evidence that party again would be arrested).
The "capable of repetition, yet evading review" exception therefore
does not provide a basis for jurisdiction.
Dismissed.

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