FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF
PUERTO RICO [Hon. Juan M. Pérez-Giménez, U.S.
Soledad Ramirez Becerra and Maria Soledad Ramirez Becerra Law
Office on brief for appellant.
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.
Lynch, Selya, and Kayatta, Circuit Judges.
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
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.
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.
of 2017, the defendant timely appealed his custodial
sentence. 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.
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 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.
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.
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.
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 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).
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."
Spencerv.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 Statesv.Johnson, 529
U.S. 53, 60 (2000); United Statesv.Carter, 860 F.3d 39, 43 (1st Cir. 2017). But
(perhaps because he is now 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 Statesv.Mazzillo, 373 F.3d 181, 182 (1st Cir. ...