United States of America v. Isidro Suarez-Reyes

United States Court of Appeals
For the First Circuit
No. 17-1849
UNITED STATES OF AMERICA,
Appellee,
v.
ISIDRO SUAREZ-REYES,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Juan M. Pérez-Giménez, U.S. District Judge]
Before
Lynch, Selya, and Kayatta,
Circuit Judges.
Maria Soledad Ramirez Becerra and Maria Soledad Ramirez
Becerra Law Office on brief for appellant.
Rosa Emilia Rodríguez-Vélez, United States Attorney, Mariana
E. Bauzá-Almonte, Assistant United States Attorney, Chief,
Appellate Division, and B. Kathryn Debrason, Assistant United
States Attorney, on brief for appellee.
December 14, 2018

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SELYA, Circuit Judge. "It is true, in federal appellate
practice as in nature, that '[t]o every thing there is a season,
and a time to every purpose.'" Fiscichelli v. City Known as Town
of Methuen, 884 F.2d 17, 17 (1st Cir. 1989) (alteration in
original) (quoting Ecclesiastes 3:1). We are reminded of this
truism where, as here, defendant-appellant Isidro Suarez-Reyes
already has completed serving the custodial sentence that he
attempts to challenge on appeal. In such circumstances, the time
and season for such a challenge has passed. Concluding as we do,
that no live controversy remains, we summarily dismiss the appeal
as moot.
A sketch of the facts and travel of the case suffices to
lend perspective. On January 20, 2017, the United States Coast
Guard intercepted a vessel en route to the United States, which
was carrying thirty undocumented individuals from Haiti and the
Dominican Republic (including the defendant). During an interview
with Border Patrol agents, the defendant — who previously had been
removed from the United States following service of an eighteen-
month term of immurement for using a telephone to facilitate a
drug-trafficking offense, see 21 U.S.C. § 843(b) — admitted that
he was a citizen of the Dominican Republic and that he did not
have documents authorizing his entry into the United States.
Consequently, the defendant was detained.

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Within a week, a federal grand jury sitting in the
District of Puerto Rico handed up an indictment that charged the
defendant with unlawfully attempting to enter the United States
after being removed therefrom following an aggravated felony
conviction. See 8 U.S.C. § 1326(a), (b)(2). Subsequent to the
defendant's entry of a guilty plea, the district court imposed a
twenty-one month custodial sentence, to be capped by three years
of supervised release.
In July of 2017, the defendant timely appealed his
custodial sentence. 1 His appeal was still pending on July 30,
2018, when (having received credit for time served in pretrial
detention and good-time credits during his incarceration) he
completed his custodial term and began serving his term of
supervised release.
Meanwhile, the appeal went forward. Appointed in mid-
September of 2017, the defendant's counsel did not move to expedite
the appeal, see 1st Cir. I.O.P. VII.B, despite the brevity of the
defendant's custodial sentence. Nor is there any indication that
counsel sought expedited preparation of the short transcript.
Instead, counsel successfully moved — twice — to extend the
briefing deadline by a total of five weeks. When filed in April
1 Although the notice of appeal was not docketed until August
2, 2017, the envelope in which it was mailed was postmarked July
28, 2017, thus rendering the appeal timely. See Fed. R. App. P.
4(c)(1).

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of 2017, the defendant's principal brief challenged only a series
of alleged errors related to the length of his custodial sentence.
That brief did not challenge either the defendant's underlying
conviction or any aspect of his term of supervised release.
The government, without any meaningful opposition, then
sought and obtained three separate extensions of its briefing
deadline (for a total of approximately three months). On July 31,
2018 — the day after the defendant was released from custody — the
government tendered its brief. In that brief, the government not
only replied to the challenges raised to the defendant's custodial
sentence but also asserted that the defendant's release from prison
rendered his appeal moot. The defendant neither filed a reply
brief nor responded in any other way to the government's mootness
argument.
We have noted before that, in some circumstances,
"silence speaks volumes." SEC v. Tambone, 597 F.3d 436, 450 (1st
Cir. 2010) (en banc). So it is here: there appears to be no
satisfactory answer to the mootness argument. We explain briefly.
A federal court's jurisdiction is constitutionally
limited to the resolution of actual "cases" and "controversies."
U.S. Const. art. III, § 2, cl. 1. In instances "where a court
cannot provide effectual relief, no justiciable case remains and
the court must dismiss the appeal as moot." Oakville Dev. Corp.
v. FDIC, 986 F.2d 611, 613 (1st Cir. 1993). This principle extends

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to cases — like this one — in which "an appeal, although live when
taken, [has been] rendered moot by subsequent developments." CMM
Cable Rep., Inc. v. Ocean Coast Props., Inc., 48 F.3d 618, 621
(1st Cir. 1995).
When the defendant filed his notice of appeal, he was
still serving his prison sentence. A challenge to that sentence
therefore presented a live controversy. But the passage of time
has reshaped the contours of the case: he has since been released
from prison, and "[t]he []incarceration that he incurred . . . is
now over, and cannot be undone." Spencer v. Kemna, 523 U.S. 1, 8
(1998). Because the defendant's custodial sentence has expired,
some particularized and continuing injury (other than the now-
ended sentence) would have to exist in order to breathe life into
the defendant's appeal. See id. at 7. Here, however, the
defendant does not profess to have suffered any collateral
consequences attributable to the alleged sentencing errors.
Vacating the defendant's custodial sentence would, therefore, be
an empty exercise. That sentence has been fully served and there
is no way to turn back the clock. Of course, the defendant remains
on supervised release, and a determination that a defendant served
too long a period of imprisonment might warrant an equitable
reduction in the length of his supervised release. See United
States v. Johnson, 529 U.S. 53, 60 (2000); United States v. Carter,
860 F.3d 39, 43 (1st Cir. 2017). But (perhaps because he is now

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in custody awaiting deportation), the defendant makes no argument
to this effect. It follows inexorably — as night follows day —
that the defendant no longer has a legally cognizable interest in
the outcome of his appeal. Consequently, his appeal is moot. See
Spencer, 523 U.S. at 14-18 (declaring moot defendant's challenge
to allegedly erroneous parole revocation when defendant already
had completed term of imprisonment); United States v. Mazzillo,
373 F.3d 181, 182 (1st Cir. 2004) (per curiam) (finding defendant's
appeal from order revoking supervised release moot because prison
sentence had been served in full); see also United States v. Lewis,
166 F. App'x 193, 195 (6th Cir. 2006) (deeming defendant's appeal
moot where "no meaningful relief" with respect to defendant's
custodial sentence was available "because the sentence ha[d]
already been served").
We need go no further. When, as in this case, an appeal,
even if successful, would not pave the way for any effectual
relief, the appeal is moot. Hence, we summarily dismiss the
defendant's appeal and leave intact the judgment of the district
court.
Dismissed. See 1st Cir. R. 27.0(c).

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