Suggestion of mootness — Ogbomon v. United States

No. 95-8736

In the Supreme Court of the Gunited

OCTOBER TERM, 1996

LARRY OSA OGBOMON, PETITIONER

Vv.

UNITED STATES OF AMERICA

ON WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

SUGGESTION OF MOOTNESS

WALTER DELLINGER

Acting Solicitor General

Department of Justice

Washington, D.C. 20530-0001

(202) 514-2217

2 eae or ere

ii ee

TABLE OF AUTHORITIES

Cases:

Broughton v. North Carolina, 717 F.2d 147 (4th

Cir. 1983), cert. denied, 466 U.S. 940 (1984)

Carafas v. LaVallee, 391 U.S. 234 (1968)

Chukwura v. United States, cert. denied, 115 S. Ct.

102 (1994) (No. 93-8962)

Evitts v. Lucey, 469 U.S. 387 (1985)

Globe Newspaper Co. v. Superior Court, 457 U.S.

596 (1982)

Honig v. Doe, 484 U.S. 305 (1988)

Lane v. Williams, 455 U.S. 624 (1982)

Liner v. Jafco, Inc., 375 U.S. 301 (1964)

Minnesota v. Dickerson, 508 U.S. 366 (1993)

Murphy v. Hunt, 455 U.S. 478 (1982)

Nebraska Press Ass'n v. Stuart, 427 U.S. 539

(1976)

North Carolina v. Rice, 404 U.S. 244 (1971)

Preiser v. Newkirk, 422 U.S. 395 (1975)

Roe v. Wade, 410 U.S. 113 (1973)

Rosario v. Rockefeller, 410 U.S. 752 (1973)

Sibron v. New York, 392 U.S. 40 (1968)

Stone v. INS, 1158S. Ct. 1537 (1995)

United States v. Munsingwear, Inc., 340 U.S. 36

(1950)

United States v. Tatum, 998 F.2d 893 (11th Cir.

U.S. Bancorp. Mortgage Co. v. Bonner Mall Part-

nership, 115 S. Ct. 386 (1994)

Vandenberg v. Roberts, 801 F.2d 877 (10th Cir.

1986)

I

Constitution, statutes and rules: Page

Ct Came, Bat. GE accssscnsanssecsniccstennisasimsimiiiaiiniias 2,4

Illegal Immigration Reform and Immigrant Respon-

sibility Act of 1996, Pub. L. No. 104-208, Div. C,

110 Stat. 3009 (reproduced at 138 Cong Rec.

H11,798 (daily ed. Sept. 28, 1996)):

§ 304(a)(3) (to be codified at 8 U.S.C. 1230(a)

GERD .cccccocevescccssesesscenensnapesehoensiaimienmbenninamenaniall 8-9, 10

Immigration and Nationality Act, 8 U.S.C. 1101

6B BOG. .ccccoceccccccsccccnccensoonoconscosoosonsseesannonssseanapoososasoote 1, 6

§ 106(a)(3), 8 U.S.C. 1105a(a)(3) (1994) ........ eee 7,8

§ 212(a)(6)(B)(i), 8 U.S.C. 1182(a)(6)(B)(i) (1994). 13

§ 238(c) (to be codified at 8 U.S.C. 1228(c)).......... 9

§ 241(a)(1)(A), 8 U.S.C. 1251(a)(1)(A) (1994) ...... 13

§ S76, BS UBC. BERS (IBD O ccccccssssnscnstccnscssinconsestons 12

BB TRG, GED cccccccsococesccnscistesnctatscsnennimaaain 1, 3, 5, 6, 9

3B USEC. GEER) ccoccrccsoscscescenscessessiinistesincbesseatnaaiaan 4

Fed. BR. Age. FP. 4G) cccocccccssssssssssssenssosensenmmsannenneainn 7

Bap. Ob. FE: BE ..ccccccssssssccsscasssensesosesenssansensmnaiuaaanni 1

In the Supreme Court of the United States

OCTOBER TERM, 1996

No. 95-8736

LARRY OSA OGBOMON, PETITIONER

Vv.

UNITED STATES OF AMERICA

ON WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

SUGGESTION OF MOOTNESS

Pursuant to Rule 21 of the Rules of this Court, the

Acting Solicitor General, on behalf of the United

States, suggests that the Court dismiss this case as

moot.

The question presented in this case is whether 18

U.S.C. 3583(d) authorizes a district court to order a

criminal defendant deported, as a condition of super-

vised release, without recourse to the standards and

procedures for determining deportability and relief

from deportation under the Immigration and Nation-

ality Act (INA), 8 U.S.C. 1101 et seq., and implement-

ing regulations. That question is based on peti-

tioner’s challenge to a condition of supervised release

imposed by the district court at his original sentenc-

ing. The court of appeals affirmed that condition in

a judgment entered on May 5, 1995. Petitioner’s

(1)

2

petition for rehearing was denied on January 22, 1996.

Since the denial of rehearing, however, on April 10,

1996, the district court has entered an order revoking

petitioner’s supervised release and ordering his

imprisonment, without imposing any new term of

supervised release. See U.S. Br. 6-7. Petitioner’s

sentence in this case thus no longer includes a term

of supervised release. Nor does his sentence include

the deportation condition formerly imposed on that

revoked term of supervised release. The revocation of

petitioner’s supervised release by the district court

thus renders the case moot.

1. This Court’s “lack of jurisdiction to review

moot cases derives from the requirement of Article

III of the Constitution under which the exercise of

judicial power depends upon the existence of a case or

controversy.” Liner v. Jafco, Inc., 375 U.S. 301, 306

n.3 (1964). As the Court has recognized, “federal

courts are without power to decide questions that

cannot affect the rights of litigants in the case before

them.” North Carolina v. Rice, 404 U.S. 244, 246

(1971) (per curiam).

Petitioner’s challenge to the condition of his

supervised release that he be deported cannot “affect

the rights of litigants in the case before” this Court,

404 U.S. at 246, because the challenged order of

deportation was imposed as a condition on a super-

vised release term that has been revoked. None of the

conditions of that revoked term of supervised release

are in force at this time, including the condition that

petitioner be deported. Petitioner has thus obtained

the key relief that he seeks in this case—vacation of

the condition of his supervised release term that

required his deportation and precluded him from

appealing or resisting any order of deportation by the

Immigration and Naturalization Service. Petitioner

did not appeal from the order revoking his supervised

release, and, accordingly, that term cannot be

reinstated.

In our brief on the merits, we noted that it was

unclear whether the district court had contemplated

that petitioner would be deported under the original

sentence upon completion of the term of imprison-

ment imposed on revocation. We also noted that the

Eleventh Circuit had not, apparently, determined

whether an order of judicial deportation, under its

interpretation of Section 3583(d), may be carried out

after the revocation of supervised release and the

completion of the term of reimprisonment, when no

new term of supervised release was imposed. U.S. Br.

6. We now believe that neither the district court nor

the court of appeals could give any operative effect to

the deportation condition that was part of the revoked

term of supervised release in this case.

The Eleventh Circuit has expressly stated that a

revoked term of supervised release “no longer

exists.” United States v. Tatum, 998 F.2d 893, 895

(1993). Thus, when the sentencing court in this case

revoked petitioner’s supervised release, that term of

supervised release, and its conditions, ceased to

exist.' To our knowledge, no court has suggested

! In Tatum, the court held that, under former law, the

sentencing court was without statutory authority to reimpose a

new term of supervised release to follow imprisonment ordered

upon revocation of supervised release. We do not agree with

the holding of Tatum on that issue; in our view, a court

operating under former law did have the power to reimpose a

new term of supervised release to follow a term of

imprisonment ordered upon revocation of supervised release.

We agree with Tatum, however, that upon revocation, the

4

that a revoked term of supervised release automati-

cally carries forward to be served later. Rather, if a

supervised-release violator is required to serve a

term of imprisonment as a result of his violation, any

further supervised release must be expressly ordered

by the sentencing court at the time of revocation.

That did not occur here.

Absent any continuing existence of the condition

that petitioner challenges, no live controversy re-

mains, and the case is nonjusticiable under Article III

of the Constitution. Nebraska Press Ass'n v. Stuart,

427 U.S. 539, 546 (1976); Preiser v. Newkirk, 422 U.S.

395, 401 (1975). An actual controversy must exist at

all stages of appellate review, including in this Court.

U.S. Baneorp Mortgage Co. v. Bonner Mall Partner-

ship, 115 S. Ct. 386, 389 (1994); United States v.

Munsingwear, Inc., 340 U.S. 36 (1950). Because a live

controversy no longer exists in this case, the case

has become moot.”

2. This Court has recognized that an exception to

usual mootness principles may be applied in cases

that are capable of repetition, yet evading review.

original term of supervised release “no longer exists.” Since

Tatum, Congress has clarified, in 18 U.S.C. 3583(h), that, when

a court revokes supervised release, it may order a defendant to

be placed on a new term of supervised release to begin after the

completion of imprisonment. The sentencing court in this case

did not invoke Section 3583(h) when it revoked petitioner's

supervised release and ordered him imprisoned.

2 Indeed, because petitioner's supervised release was

revoked on April 10, 1996, the case became moot before the

petition for a writ of certiorari was filed in this Court on April

19, 1996. This Office did not become aware of the revocation of

petitioner’s supervised release until after the Court granted

certiorari on October 1, 1996.

5

The Court has also reviewed challenges involving

criminal sentences even after completion of the sen-

tence if the challenged provision has coilateral legal

consequences. Neither basis for finding an exception

to the mootness doctrine exists in this case.

a. In the brief filed by the amicus curiae invited by

this Court to defend the judgment of the court of

appeals, amicus suggests that, because a similar

deportation condition is included as a term of super-

vised release to which petitioner has been sentenced

in another criminal case in another federal district

court, this case falls within the mootness exception

for controversies that are capable of repetition, yet

evading review. See Br. of Court-invited Amicus

Curiae 5 n.4. To come within that exception, two

showings are necessary: “(1) the challenged action

was in its duration too short to be fully litigated prior

to its cessation, and (2) there was a reasonable

expectation that the same complaining party would be

subjected to the same action again.” Weinstein v.

Bradford, 423 U.S. 147, 149 (1975) (per curiam).

Neither condition is met in this case.

On March 18, 1996, petitioner was charged in the

United States District Court for the Northern

District of Alabama with commission of bank fraud.

Petitioner ultimately was indicted on that and other

federal charges, entered a guilty plea to the indict-

ment, and was sentenced by that court to 24 months’

imprisonment, to be followed by five years’ supervised

release. U.S. Br. 7n.5. The court ordered, inter alia,

as a condition of supervised release, that petitioner be

deported immediately upon completion of his term of

imprisonment, in accordance with Section 3583(d), and

that petitioner be delivered to an authorized INS offi-

cial for execution of the deportation order. /bid.

6

The Alabama district court order does not demon-

strate that petitioner, “the complaining party” in this

case, is likely to be subject again to the same action

that he challenges here. Weinstein v. Bradford, 423

U.S. at 149. The legal issues raised by the Alabama

judgment are not identical to the legal issues raised

in this case. By the time of the sentencing by the

Alabama district court, an immigration judge had

entered an order of deportation against petitioner

under the INA, 8 U.S.C. 1101 et seg., and had issued a

warrant directing the INS to arrest and deport

petitioner. See U.S. Br. 6 n4. Petitioner did not

appeal the immigration judge’s order and was thus

under a final order of deportation under the INA, see

Stone v. INS, 115 S. Ct. 1537 (1995); an immigration

judge had also denied his motion to reopen his

deportation proceedings. See U.S. Br.6n.4. When an

alien defendant is under a final deportation order

pursuant to the INA and an immigration judge has

ordered him to be arrested and deported, the Attorney

General already has made her final determination,

under the standards and procedures of the INA, that

the alien is subject to deportation under the INA. See

id. at 30 (indicating that an alien subject to deporta-

tion for purposes of Section 3583(d) is “an alien who

has been or will be ordered deported by the Attorney

General under the INA”) (emphasis added). An order

of judicial deportation under Section 3583(d) entered

after a final administrative order of deportation raises

different legal issues from those raised by the instant

case. Cf. Murphy v. Hunt, 455 U.S. 478, 481 n.5 (1982)

(per curiam) (defendant’s challenge to limitation on

pretrial bail was moot after his conviction; even if the

defendant had challenged limitations on bail pending

=

7

appeal, that claim involved different legal considera-

tions).

Nor does a challenge to the validity of a judicial

deportation order involve a condition that is “too

short” in duration to permit complete review in the

federal judicial system before its expiration. Wein-

stein v. Bradford, 423 U.S. at 149. Petitioner is

entitled to appeal a sentence, and he could have

appealed the sentence imposed by the Alabama dis-

trict court, including the judicial order of deportation

imposed as a condition of supervised release.’ If a

defendant (such as petitioner) anticipates that he will

complete his term of imprisonment and then face

deportation under a term of supervised release before

completion of the entire appellate process (including

any review by this Court), the defendant may seek to

protect his ability to obtain relief by requesting a

stay of the judicial deportation order. Any failure on

a defendant’s part to take advantage of the available

means to protect an appeal of his sentence would not

justify application of the mootness exception for

controversies that evade judicial review, because any

loss of direct appeal rights could be avoided.’ Indeed,

at least one petition raising the legal issue presented

here did reach this Court without becoming moot.

’ To our knowledge, petitioner had not filed a notice of

appeal from his sentence in the Alabama district court within

the time allowed by Fed. R. App. P. 4(b). The finality of that

sentence thus makes it doubtful that any favorable resolution of

the underlying legal issue in this case would help petitioner in

that case.

4 Petitioner, of course, is under an independent final order

of deportation issued under the INA. Petitioner did not seek

review of that order or invoke procedures that would operate

to stay it. See 8 U.S.C. 1105a(a)(3) (1994).

8

See Chukwura v. United States, cert. denied, 115 S.

Ct. 102 (1994) (No. 93-8962); see 93-8962 U.S. Br. 5-6, 8

(petitioner had sought stay of court of appeals’ man-

date pending his petition for certiorari, and his

petition for judicial review of his administrative order

of deportation under the INA was pending in the court

of appeals, thus automatically staying deportation

under 8 U.S.C. 1105a(a)(3) (1994)).

It would not be appropriate to apply the capable-of-

repetition-yet-evading-review exception here based on

speculation that the Alabama district court’s deporta-

tion order could become moot in the same manner as

in the instant case. That would require petitioner to

violate his supervised release conditions—an occur-

rence that petitioner can avoid, and is compelled by

law to avoid. Exemption of a controversy from moot-

ness because it will otherwise continue to evade

review is generally justified only when the evasion of

review results from circumstances that cannot be

avoided. See, e.g., Honig v. Doe, 484 U.S. 305, 317-323

(1988) (aging); Roe v. Wade, 410 U.S. 113, 125 (1973)

(progression of pregnancy); Rosario v. Rockefeller,

410 U.S. 752, 756 n.5 (1973) (public elections); Globe

Newspaper Co. v. Superior Court, 457 U.S. 596, 602-

603 (1982) (completion of criminal trials from which

press and public are excluded).

Finally, application of the mootness exception for

recurring controversies that evade review would be

particularly inappropriate in this case, because the

prospect of “repetition” of the specific legal contro-

versy raised by petitioner will be eliminated after

April 1, 1997, the effective date of Section 304(a)(3) of

the Illegal Immigration Reform and Immigrant

Responsibility Act of 1996 (IIRAIRA), Pub. L. No.

104-208, Div. C, 110 Stat. 3009 (reproduced at 138

- .

9

Cong. Rec. H11,798 (daily ed. Sept. 28, 1996)) (to be

codified at 8 U.S.C. 1230(a)(3)). Section 304(a)(3) adds

to the INA a new Section 240 that states that,

{uJnless otherwise specified in [the INA], a pro-

ceeding under this section shall be the sole and

exclusive procedure for determining whether an

alien may be admitted to the United States or, if

the alien has been so admitted, removed from the

United States.

The INA does “otherwise specifly]” that judicial or-

ders of deportation are authorized in proceedings

under the recently enacted, and even more recently

amended and renumbered, Section 238(c) of the INA

(to be codified at 8 U.S.C. 1228(c)) (see U.S. Br. 33-38).

That Section, unlike 18 U.S.C. 3583(d), includes de-

tailed procedures requiring, inter alia, a recommen-

dation from the INS regarding the alien’s eligibility

for relief from deportation. The INA, however, does

not “otherwise specifly]” that the determination of

the admission or removal of an alien is authorized in

proceedings under Section 3583(d) of Title 18.

Thus, the new provision of IIRAIRA overrides the

holding of the court of appeals in this case.’ It follows

that the legal issue presented in this case, 7.e., the

authority of the sentencing court under Section

3583(d) to enter a judicial order of deportation, will

not recur in the same form after April 1987. See Br.

of Court-invited Amicus Curiae 23 n.9 (suggesting

that, in light of IIRAIRA, controversy presented by

instant case may lack any continuing importance, and

5 The Court granted certiorari in the instant case on

October 1, 1996. ITRAIRA had just been enacted the preceding

day and had not been discussed in the parties’ briefs at the

petition stage, which were filed before that enactment.

10

dismissal of the writ of certiorari as improvidently

granted may be warranted). That circumstance de-

prives the particular controversy here of prospective

likelihood of repetition.°

It is, of course, true that judgments entered before

IIRAIRA’s effective date may present the same legal

issue raised by petitioner. Other petitions presenting

that issue are in fact pending before this Court. The

Court-invited amicus curiae suggests that the Court

might be able to avoid the consequences of mootness

in this case by granting review in one or more of

those cases. Br. of Court-invited Amicus Curiae 6

n.4." The United States is currently preparing re-

sponses to the petitions in those cases. The diminish-

ing importance of the controversy in light of

IIRAIRA, however, weighs against the Court grant-

ing review in those cases simply to preserve the legal

issue for review despite the mootness of this case.

b. Challenges to criminal convictions are not moot

even after defendants have completed service of their

sentences if the conviction carries collateral legal

consequences. See Carafas v. LaVallee, 391 U.S. 234

(1968) (civil and employment disabilities imposed by

6 Petitioner will remain in prison, under the Alabama

district court’s sentence, beyond the April 1, 1997, effective

date of Section 304(a)(3) of the ITIRAIRA.

7 See Oboh v. United States, petition for cert. pending,

No. 96-6653; Bowen v. United States, petition for cert.

pending, No. 96-6658. In addition to those two cases, petitions

raising the issue have been filed in two more cases. See

Akamiokhor v. United States, petition for cert. pending, No.

96-6898; Valdez-Mejia v. United States, petition for cert.

pending, No. 96-7063. In at least some of those cases, however,

the petitioner has already been deported. Those cases thus

may be moot as well.

11

law); Sibron v. New York, 392 U.S. 40, 57 (1968) (a

criminal case is moot “only if it is shown that there is

no possibility that any collateral legal consequences

will be imposed on the basis of the challenged con-

viction”); Evitts v. Lucey, 469 U.S. 387, 391 n.4 (1985)

(possibility of impeachment and future criminal en-

hancement); Minnesota v. Dickerson, 508 U.S. 366,

371 n.2 (1993) (future determination of criminal his-

tory).

Challenges to criminal convictions or sentencing

orders are, however, rendered moot by completion of

the sentence if the particular conviction or order does

not carry such collateral consequences. See Lane v.

Williams, 455 U.S. 624 (1982) (dismissing as moot a

challenge to a revocation of parole when, before the

case could be decided by the Court, the defendants had

been released); see also Broughton v. North Carolina,

717 F.2d 147 (4th Cir. 1983) (challenge to misdemeanor

contempt conviction became moot upon expiration of

sentence because conviction had no effect on defen-

dants’ civil rights and did not present a possibility of

enhancement of sentence in future criminal proceed-

ing, and because defendant’s continued reputational

interests were not sufficient to avoid mootness), cert.

denied, 466 U.S. 940 (1984); Vandenberg v. Rodgers,

801 F.2d 377, 378 (10th Cir. 1986) (per curiam) (chal-

lenge to delay in release on parole rendered moot by

release on parole because no collateral consequences

remained from delay; possibility that defendant may

be subjected to future adverse consequences because

of underlying incident report was too speculative).

The revoked condition of supervised release that

petitioner be deported does not have any continuing

collateral legal consequences for petitioner. No civil

liabilities result from a revoked deportation condition

12

of supervised release. Nor does a revoked deportation

condition of supervised release have consequences for

impeachment, future criminal sentence enhancement,

or employment prospects. Petitioner does not chal-

lenge the conviction underlying his sentence (or the

findings of supervised release violations underlying

the revocation order), which might have such conse-

quences. Rather, he challenges only a condition of

supervised release that was never executed and that

no longer exists. Cf. North Carolina v. Rice, 404

U.S. 244, 246-248 (1971) (“Nullification of a conviction

may have important benefits for a defendant * * *

but urging in a habeas corpus proceeding the cor-

rection of a sentence already served is another mat-

ter.”).°

Nor does the district court’s determination to

impose a deportation condition, in the now-revoked

term of supervised release, have any collateral legal

consequences. The district court’s determination,

standing alone, would not affect any future criminal

or immigration proceeding against petitioner. Peti-

tioner was convicted of violating 8 U.S.C. 1326 (1994),

which requires proof that he is an alien who re-

entered the United States illegally following a prior

8 Contrary to the suggestion of an amicus curiae, the

order of the district court revoking petitioner’s supervised

release does not appear to have been based in any respect on

petitioner’s violation of the deportation condition of supervised

release. See Br. of Amicus Curiae WLF 10 n.3. As we ex-

plained in our brief, the order itself does not recite the grounds

for revocation, but the probation officer’s petition for revoca-

tion, which serves to notify the defendant of the grounds on

which revocation is being sought, cited four grounds, none of

which was the fact that petitioner had not been deported. See

US. Br. 6.

ae? ee

13

deportation. Moreover, the INS has, since the

imposition of the criminal sentence in this case,

independently found him to be deportable and ordered

his deportation under the provisions of the INA.’ In

the face of those determinations establishing

petitioner’s status as a deportable alien, there is no

basis for any speculation that the unexecuted

condition of supervised release requiring deportation

of petitioner would have any collateral effect on him

in any future proceeding.

x* * * * *

In sum, any decision by this Court that invalidated

the now-revoked deportation order that was imposed

as a condition of supervised release would have no

® The immigration judge's order that petitioner be

deported under the INA is not based on the supervised-release

deportation condition. Rather, the INS order to show cause

why petitioner should not be deported was based on a charge

under Section 241(a)(1)(A) of the INA, 8 U.S.C. 1251(a)(1)(A)

(1994), that, at the time of his entry, he was excludable because

he had been previously arrested and deported and had not ob-

tained consent of the Attorney General to reenter as requir

ed under Section 212(a)(6)(B)(i) of the INA, 8 U.S.C.

1182(a)(6)(B)(i) (1994). The May 12, 1995, decision and order

of the immigration judge cited that order to show cause, found

that the INS had established alienage and deportability, and

ruled that petitioner had waived any relief from deportation.

Similarly, the June 5, 1995, warrant of deportation cites

Section 241(a)(1)(A) as the basis for petitioner’s deportation.

Finally, the February 1, 1996, order of the immigration judge

denying petitioner's motion to reopen proceedings simply

rejected petitioner’s claims of insufficient notice and asylum.

14

effect on the judgment in this case. Because the con-

dition of supervised release that petitioner challenges

has been revoked, the case is now moot and should be

dismissed.

Respectfully submitted.

WALTER DELLINGER

Acting Solicitor General

DECEMBER 1996