Opposition Brief — Hohn v. United States

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4 JUN 12

No. 01-1340

In the Supreme Court of the Anited States

ARNOLD FRANK HOHN, PETITIONER

Vv.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

BRIEF FOR THE UNITED STATES

THEODORE B. OLSON

Solicitor General

Counsel of Record

MICHAEL CHERTOFF

Assistant Attorney General

STEVEN L. LANE

Attorney

Department of Justice

Washington, D.C. 20530-0001

(202) 514-2217

QUESTION PRESENTED

Whether petitioner’s motion pursuant to 28 U.S.C.

2255 to vacate his conviction and sentence under 18

U.S.C. 924(c) is moot because petitioner has completed

serving his term of imprisonment and supervised re-

lease on that conviction.

(1)

TABLE OF CONTENTS

Opinion below

Jurisdiction .....

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TABLE OF AUTHORITIES

Cases:

Agostini v. Felton, 521 U.S. 203 (1997) ....-scssessesseessneeenees

Arnold v. Panora, 593 F.3d 161 (1st Cir. 1979)

Bailey v. United States, 516 U.S. 187 (1995) ......s.-ssseesse

Benton v. Maryland, 395 U.S 784 (1969)

Bousley v. United States, 523 U.S. 614 (1998) ........sssss0+

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

1993), cert. denied, 466 U.S. 940 (1994) . 15,16

Bryan v. Duckworth, 88.F.3d 431 (7th Cir. 1986) ............ 15

Chacon v. Wood, 36 F.3d 1459 (9th Cir. 1994) .............. 13, 14

Evitts v. Lucey, 469 U.S. 387 (1985) 9,10, 11

Glickman v. Wileman Bros. & Elliott, Inc., 521

U.S. 457 (1997) ri 12

Hohn v. United States:

99 F.3d 892 (8th Cir. 1996), vacated, 524 U.S. 236

(1998) 5

193 F.3d 921 (8th Cir. 1999) ...... . 5

Lane v. Williams, 455 U.S. 624 (1982) 11

Malloy v. Purvis, 681 F.2d 736 (11th Cir. 1982) .............. 14

Minnesota v. Dickerson, 508 U.S. 366 (1993) .......-s00+ 10, 11

Minor v. Dugger, 864 F.2d 124 (11th Cir. 1989) ............. 14, 15

Nakell v. Attorney General of North Carolina, 15

F.3d 319 (4th Cir.), cert. denied, 513 U.S. 866 (1994) .... 15

Pennsylvania v. Mimms, 434 U.S. 106 (1977) ........0+000 10, 11

Pollard v. United States, 352 U.S. 354 (1957) .........000+: 7,9, 10

Ray v. United States, 481 U.S. 736 (1987) .........sssesssseeees _ 12,18

(IIT)

Cases—Continued:

Rodriquez de Quijas v. Shearson/American Express,

Inc., 490 U.S. 477 (1989)

Sesler v. Pitzer, 110 F.3d 569 (8th Cir. 1997) ..............sc000 7

Sibron v. New York, 392 U.S. 40 (1968) .........cccssesesees 9,10, 11

Spencer v. Kemmna, 523 U.S. 1 (1998) ....cccsecececseeeeees 7,8, 10, 11

Steele v. Blackman, 236 F.3d 130 (8d Cir. 2001) .............. 16

United States v. Hohn, 8 F.3d 1301 (8th Cir.

ROTI wicessissnintssiicinseaiipinniasessniniattesniatadaniaipaiiiaiaibieiandiniiahalninaiteneta 4

United States v. Hughey, 147 F.3d 423 (5th Cir.),

cert. denied, 525 U.S. 1030 (1998) ................ ions 12

United States v. Johnson, 529 U.S. 53 (2000) ......... ee 7

United States v. Rosario, 111 F.3d 293 (2d Cir.), cert.

cert. denied, 522 U.S. 923 (1997) . 12

Statutes and regulation:

Act of Nov. 13, 1998, Pub. L. No. 105-386, § 1(a),

BE Fe, TI icnietinicsicintcanieliriesitianietisiinannamtitligicianinnniiian 3

18 U.S.C. 922(g) 2,3

18 U.S.C. 924 (2000) 3,4

18 U.S.C. 924(a)(2) ia 3

18 U.S.C. 924(c) 5, 6, 7, 8, 9, 12, 13, 16

18 U.S.C. 924(c)(1) 2,3, 4, 5,6

18 U.S.C. 3013(a)(2)(A) (1988) 12

18 U.S.C. 3583(e)(1) 7

18 U.S.C. 3583(e)(2) 7

21 U.S.C. 841 2,7

21 U.S.C. 841(a) 2,4

Oe Se: CW ehciiecinitceatiisaeriitbatianiiarniatininia 247

21 U.S.C. 860 2,3

28 U.S.C. 2253(c) 13

28 U.S.C. 2253(c)(2) 5

28 U.S.C. 2255 2, 4, 6, 13, 16

N.C. Gen Stat. § 15A-1340.41 (1981) 15

Regulation—Continued: Page

United States Sentencing Guidelines:

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In the Supreme Court of the Anited States

No. 01-1340

ARNOLD FRANK HOHN, PETITIONER

Vv.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

BRIEF FOR THE UNITED STATES

OPINION BELOW

The opinion of the court of appeals (Pet. App. la-13a)

is reported at 262 F.3d 811.

JURISDICTION

The judgment of the court of appeals was entered on

August 22, 2001. A petition for rehearing was denied

on December 5, 2001 (Pet. App. 18a). The petition for a

writ of certiorari was filed on March 5, 2002. The

jurisdiction of this Court is invoked under 28 U.S.C.

1254(1).

STATEMENT

Following a jury trial in the United States District

Court for the District of Nebraska, petitioner was

(1)

convicted of possession of methamphetamine with in-

tent to distribute it within 1000 feet of a school, in

violation of 21 U.S.C. 841 and 845a (recodified at 21

U.S.C. 860); being a felon in possession of a firearm, in

violation of 18 U.S.C. 922(g); and using or carrying a

firearm during and in relation to a drug trafficking

crime, in violation of 18 U.S.C. 924(¢c)(1). He was sen-

tenced to 90 months of imprisonment, to be followed by

six years of supervised release, and he was ordered to

pay $150 in special assessments. The court of appeals

affirmed petitioner’s convictions and sentence. The

district court thereafter denied petitioner’s motion for

relief under 28 U.S.C. 2255, and the court of appeals

rejected his request for a certificate of appealability.

This Court granted certiorari, vacated the court of

appeals’ judgment, and remanded the case for further

proceedings. On remand, the district court again

denied petitioner’s Section 2255 motion, and the court

of appeals ordered the motion dismissed as moot.

1. In June 1990, the police searched petitioner’s

home after an informant told them that petitioner was

selling methamphetamine. The police arrested peti-

tioner, the only person present at the time of the

search, in his living room. The police found metham-

phetamine, three firearms, and two holsters on peti-

tioner’s kitchen counter, and two more firearms in a

box located in the kitchen. In petitioner’s bedroom,

they found more methamphetamine, as well as another

firearm and a holster nearby. In a second bedroom, the

police observed a wall-mounted gun case containing a

collection of hunting rifles and shotguns. Pet. App. 2a.

2. A federal grand jury returned an indictment

charging petitioner with: (1) possession of metham-

phetamine with intent to distribute it within 1000 feet

of a school, in violation of 21 U.S.C. 841(a) and 845a

(recodified at Section 860); (2) being a felon in posses-

sion of a firearm, in violation of 18 U.S.C. 922(g) and

924(a)(2); and (3) using or carrying a firearm during and

in relation to a drug trafficking crime, in violation of

Section 924(c)(1)." Pet. App. 2a. At trial, petitioner

testified in his own behalf. He admitted possessing

methamphetamine and firearms, but he claimed that he

owned the weapons because he is an avid hunter and

because his home had been burglarized and vandalized.

Ibid. At the close of the trial, the district court pro-

vided the jury with the following instruction on the

meaning of “use” and “carry” in Section 924(c)(1):

The phrase ‘used a firearm’ means having a firearm

available to aid in the commission of possession of

Methamphetamine with intent to distribute.

Similarly, the phrase ‘carried a firearm’ does not

require proof of actual possession of a firearm or use

of it in any affirmative manner, but does require

proof beyond a reasonable doubt that the firearm

was available to provide protection in connection

with the possession of Methamphetamine with in-

tent to distribute or to facilitate success.

Id. at 2a-3a. The court overruled petitioner’s objection

that the instruction “allows this jury to find that merely

having a firearm available is sufficient” to establish

“use” under Section 924(c)(1). Id. at 3a.

The jury found petitioner guilty on all counts, and the

district court sentenced him to 90 months of imprison-

1 In 1998, Congress amended Section 924(c)(1) to proscribe

possession of a firearm in furtherance of a drug trafficking crime,

in addition to proscribing using or carrying a firearm during and in -

relation to a drug trafficking crime. Act of Nov. 18, 1998, Pub. L.

Ne. 105-386, § 1(a), 112 Stat. 3469; 18 U.S.C. 924(c)(1) (2000). The

petition involves only the pre-1998 statute.

hecdiant hina tenth dill ee.. orcas. Se Pe

ment, 60 months of which is attributable to the Section

924(c)(1) conviction. The court also imposed a six-year

term of supervised release for the violation of Sections

841(a) and 845a, and concurrent three-year terms of

supervised release for the remaining two counts. Pet.

App. 3a. In addition, the district court imposed a

special assessment of $50 on each of the three counts,

see Judgment 5; Dist. Ct. Docket Entry 158, and

defendant paid the special assessments as ordered. See

Federal Bureau of Prisons, U.S. Dep’t of Justice,

Progress Report for Arnold F. Hohn (1995). On direct

appeal, petitioner did not challenge his Section 924(c)(1)

conviction or the jury instructions related to that

offense. Pet. App. 3a. The court of appeals affirmed

petitioner’s convictions and sentence. United States v.

Hohn, 8 F.3d 1301 (8th Cir. 1993).

3. Subsequently, this Court rejected the broad

interpretation of the word “use” that formed the basis

for the jury instructions at petitioner’s trial and held

that “use” under Section 924(c)(1) requires “active em-

ployment of the firearm.” Bailey v. United States, 516

US. 187, 144 (1995). Relying on Bailey, petitioner filed

a pro se motion to vacate, set aside, or correct his

sentence under 28 U.S.C. 2255. Pet. App. 4a. Peti-

tioner argued that his conduct did not constitute a

violation of Section 924(c)(1), as interpreted by Bailey,

and that the district court’s jury instructions improp-

erly defined the phrase “used a firearm.” The district

court denied the motion, concluding that petitioner had

waived the Bailey claim by failing to challenge his

Section 924(c)(1) conviction or the corresponding jury

instructions on direct appeal. Jbid. The court of

appeals denied petitioner a certificate of appealability

on the ground that his claim is statutory rather than

constitutional and he thus had not made “a substantial

ee a

showing of the denial of a constitutional right.” Hohn v.

United States, 99 F.3d 892, 892-893 (8th Cir. 1996)

(quoting 28 U.S.C. 2253(c)(2)), vacated, 524 U.S. 236

(1998).

4. This Court granted certiorari to determine

whether it has jurisdiction to review decisions by the

courts of appeals denying applications for certificates of

appealability. 524 U.S. at 238-239. After answering

that question in the affirmative, the Court vacated the

court of appeals’ decision because the United States

conceded that petitioner’s Bailey claim is constitutional

in nature. Jd. at 240, 253. The Court remanded the case

to the court of appeals for further consideration. Id.

at 253.

5. On remand, the court of appeals considered

whether it could grant petitioner relief on his Bailey

claim notwithstanding that he had procedurally de-

faulted the claim by failing to raise it on direct appeal.

Hohn v. United States, 193 F.3d 921, 923-925 (8th Cir.

1999). Petitioner contended that his procedural default

should be excused because he was actually innocent of

the Section 924(c) offense. Jd. at 928. The court of

appeals held that petitioner was “actually innocent” of

“using” a firearm under Section 924(c)(1). Jd. at 924.

Noting, however, that the jury found petitioner guilty

of using or carrying a firearm, the court of appeals

remanded to the district court “to engage in the fact-

bound analysis of whether [petitioner] is factually

~ innocent of carrying a firearm during or in relation to a

drug trafficking offense, in order to open the gateway

for the consideration of his defaulted Bailey claim.”

Ibid. See Bousley v. United States, 523 U.S. 614 (1998).

After consideration of the supplemental briefs sub-

mitted on that question, the district court held that

petitioner did not establish actual innocence of “carry-

ing” a firearm under Section 924(c)(1). Pet. App. 14a-

17a. The court reasoned that

the guns being open and obvious on the kitchen

counter with such things as spare change next to

holsters in which to carry them would indicate that

they were carried. This evidence along with drugs

being found in [petitioner’s] home and on his person,

could allow a reasonable juror to find that [peti-

tioner] carried the firearm in relation to a drug

trafficking crime. In addition, this Court notes that

an informant stated that [petitioner] regularly

carried a firearm.

Id. at 17a. The district court granted petitioner’s re-

quest for a certificate of appealability. See zd. at 5a.

6. Acting on its own motion, the court of appeals

determined that it lacked jurisdiction to entertain peti-

tioner’s appeal, vacated the district court’s judgment,

and ordered petitioner’s Section 2255 motion to be

dismissed as moot. Pet. App. la-13a. After acknowl-

edging that “this court and the Supreme Court have

entertained [petitioner’s] appeals since he was released

from prison [in October of 1997],” the court observed

that it was nevertheless obligated to satisfy itself of its

own jurisdiction. Jd. at 5a. The court asserted that,

“(rjegardless of whether an Article III, [Section] 2 case

existed in prior proceedings, [petitioner] must show the

subsistence of a case or controversy in this court.” Id.

at 6a. Then, after observing that petitioner is no longer

imprisoned and that the concurrent three-year term of

supervised release imposed on the Section 924(c) con-

_viction has expired, the court concluded that “[peti-

tioner’s] case is moot under the general mootness in-

quiry because a favorable decision could not redress

any injury caused by a purportedly unconstitutional

conviction under [Section] 924(c)(1).” Jd. at 6a-7a &

n.2.

The court of appeals recognized, however, the exis-

tence of an “exception” to the mootness doctrine when

| an injury other than imprisonment or supervised

| release—“some ‘collateral consequence’ of the con-

viction”—continues to exist. Pet. App. 10a (quoting

: Spencer v. Kemna, 523 U.S. 1, 7 (1998)). Relying on

Pollard v. United States, 352 U.S. 354 (1957), the court

began its “collateral consequences” analysis “by pre-

suming that [petitioner’s] [Section] 924(c)(1) conviction

creates sufficient collateral consequences to render his

appeal justiciable.” Pet. App. 10a. The court also

noted, however, that, in Spencer, this Court declined to

2 The court acknowledged that, under its decision in Sesler v.

Pitzer, 110 F.3d 569 (8th Cir. 1997), this case would not be moot

because, if petitioner prevailed in his challenge to his Section

924(c) conviction and had thus served sixty months’ excess time in

prison, the court could reduce his term of supervised release by

that period. Pet. App. 7a-8a. (Petitioner is still serving the six-

year term of supervised release for his violation of 21 U.S.C. 841

and 845a. Pet. App. 6a.) But the court recognized that Sesler

conflicts with this Court’s holding in United States v. Johnson, 529

U.S. 53 (2000), that a court may not automatically credit excess

prison time against a term of supervised release. The court thus

held that it “could not reduce [petitioner’s] term of supervised

release if we held his § 924(c)(1) conviction unconstitutional.” Pet.

App. 9a. In Johnson, the Court also noted that a district court has

( power to take into account “equitable considerations of great

I weight [that] exist when an individual is incarcerated beyond the

| proper expiration of his prison term,” by granting early termi-

nation of supervised release under 18 U.S.C. 3583(e)(1) and (2).

Johnson, 529 U.S. at 60. The court of appeals in this case did not

address whether the district court’s power to shorten petitioner’s

supervised release based in part on a successful challenge to his

Section 924(c) conviction might create a live controversy over the

validity of that conviction.

extend the presumption of collateral consequences from

criminal convictions to parole revocations and, in so

doing, criticized its precedent that had presumed

collateral consequences from convictions. /bid. The

court of appeals therefore concluded that its analysis

should reflect “the Spencer Court’s distinct distaste for

finding collateral consequences without a showing of a

concrete statutory disability stemming from the

challenged conviction.” Jd. at 10a-11a.

Relying on Spencer, the court of appeals then re-

jected the government’s position that “the possibility

that a court could use [petitioner’s] [Section] 924(c)(1)

conviction to enhance his sentence should a court con-

vict [petitioner] of another crime in the future is a

sufficient collateral consequence to render his appeal

justiciable.” Pet. App. lla; see Gov’t C.A. Br. 9 n.1.

The court of appeals reasoned that this collateral conse-

quence is too remote to preclude dismissal for mootness

because it is “contingent upon [petitioner’s] committing

another crime, something that is within his power to

prevent from occurring.” Pet. App. 1la (citing Spencer,

523 U.S. at 15).

Next, the court of appeals concluded that petitioner

would not suffer any “concrete” collateral consequences

—¢e.g., deprivation of the right to vote, to hold office, to

serve on a jury, or to engage in certain businesses—as a

result of his Sectiun 924(c) conviction that would not

independently result from his other, unchallenged con-

victions. Pet. App. lla-12a. The court reasoned that its

“inability to redress the purported constitutional in-

firmity in [petitioner’s] [Section] 924(c)(1) conviction

overcomes the presumption in favor of finding collateral

consequences.” Jd. at 18a. The court therefore vacated

]

the district court’s judgment on the merits and re-

manded the case for dismissal. [bid.°

DISCUSSION

Petitioner argues (Pet. 8) that the court of appeals’

decision “contravened decades of this Court’s pre-

cedents by holding that the possibility that [peti-

tioner’s] Section 924(¢) conviction would be used to

enhance his sentence for future offenses was not a

sufficient collateral consequence to make his case

justiciable.” He also contends that the courts of appeals

are in conflict on how to apply the presumption of

collateral consequences of a criminal conviction under

this Court’s cases. Although the government agrees

that the Eighth Circuit’s decision departs from this

Court’s cases, plenary review is not warranted because

petitioner can show a concrete consequence of his con-

viction even under the court of appeals’ test. The

petition should therefore be granted, the judgment of

the court of appeals vacated, and the case remanded for

further consideration.

1. The United States agrees that the court of ap-

peals’ decision conflicts with decisions of this Court

finding challenges to criminal convictions, the sentence

for which was fully served, not to be moot. E.g.,

Pollard v. United States, 352 U.S. 354, 358 (1957);

Sibron v. New York, 392 U.S. 40, 55-56 (1968); Hvitts v.

Lucey, 469 U.S. 387, 391 n.4 (1985). At least since its

decision in Pollard, the Court has viewed “(t]he

8 Petitioner sought rehearing and rehearing en banc. In re-

sponse, the United States agreed with the panel that the case is

moot because petitioner has served his full terms of imprisonment

and supervised release on the Section 924(c) count. U.S. Resp. to

Appellant’s Pet. for Rehearing With Suggestion of Rehearing En

Banc 9.

possibility of consequences collateral to the imposition

of sentence [as] sufficiently substantial to justify * * *

dealing with the merits” of a defendant’s request for

collateral relief. 352 U.S. at 358. In Szbron, the Court

stated that it had “abandoned all inquiry into the actual

existence of specific collateral consequences and in

effect presumed that they existed.” 392 U.S. at 55.

Thereafter, the Court has “accept[ed] the most general-

ized and hypothetical of consequences as sufficient to

avoid mootness in challenges to conviction.” Spencer v.

Kemna, 523 U.S. 1, 10 (1998) (citing Evitts, 469 U.S. at

391 n.4; Benton v. Maryland, 395 U.S. 784, 790-791

(1969); Pennsylvania v. Mimms, 434 U.S. 106, 108 n.3

(1977) (per curiam); Minnesota v. Dickerson, 508 U.S.

366 (1993)). Notably, the Court has consistently relied

on the possibility that the conviction might be used to

enhance the defendant’s sentence for a future convic-

tion as a basis for finding that a controversy over the

conviction’s validity is not moot. See, e.g., Dickerson,

508 U.S. at 371 n.2; Evitts, 469 U.S. at 391 n.4; Mimms,

434 U.S. at 108 n.3; Benton, 395 U.S. at 790; Sibron, 392

U.S. at 55-56.

The court of appeals began its analysis by citing

Pollard and “presuming that [petitioner’s] § 924(c)(1)

conviction creates sufficient collateral consequences to

render his appeal justiciable.” Pet. App. 10a. But it

then went on to analyze whether the presumption was

overcome in light of the “Spencer Court’s distinct dis-

taste for finding collateral consequences without a

showing of a concrete statutory disability stemming

from the challenged conviction.” Id. at 10a-1lla.

Spencer, however, did not involve a challenge to a con-

viction, and it did not alter.the presumption, repeatedly

applied by this Court, that “a wrongful criminal con-

viction has continuing collateral consequences.”

Spencer, 523 U.S. at 8. Although some language in

Spencer is critical of that presumption, see id. at 10-11,

the Court did not abrogate the practice. See id. at 12.

Instead, the Court declined to extend the presumption

of collateral consequences to challenges to revocation of

parole, a context in which the Coyrt had not historically

applied the presumption. See id. at 12-13 (citing Lane

v. Williams, 455 U.S. 624 (1982)). In fact, the Court

noted that the presumption of collateral consequences

“is likely to comport with reality” in the context of

criminal convictions, because “it is an obvious fact of life

that most criminal convictions do in fact entail adverse

collateral legal consequences.” Jd. at 12 (quoting

Sibron, 392 U.S. at 55).

The presumption of collateral consequences in

challenges to convictions thus survives Spencer.

Spencer and other cases are not entirely clear on

whether the presumption is effectively conclusive or,

rather, whether it is rebuttable on a case-by-case basis.

But the Court’s cases are clear that the possibility of a

recidivist enhancement for a future sentence is suffi-

cient to preclude a finding of mootness in a challenge to

a conviction. See Dickerson, Evitts, Mimms, Benton,

and Sibron, supra. The court of appeals’ rejection of

that approach cannot be reconciled with those cases.

And the court was not justified in departing from this

Court’s holdings based on a belief that their reasoning

had been undermined by later decisions. See Agostini

v. Felton, 521 U.S. 208, 237 (1997); Rodriguez de Quijas

v. Shearson/American Express, Inc., 490 U.S. 477

(1989).

2. Even if the analysis in Spencer were thought to

justify revisiting the presumption that criminal con-

victions have collateral consequences, this case is not an

appropriate one for undertaking that reconsideration.

That is because the decision of the court of appeals is

incorrect even under that court’s understanding of the

law.

Even assuming that the law required a defendant

who is no longer in custody or under supervised release

for the conviction that he seeks to challenge to show a

concrete consequence caused by the challenged con-

viction, there is a concrete consequence here. Pursuant

to 18 U.S.C. 3013(a)(2)(A) (1988), the district court im-

posed a special assessment of $50 for petitioner’s

Section 924(c) conviction, see Judgment 5; Dist. Ct.

Docket Entry 158, and petitioner paid the special

assessment as ordered. See Federal Bureau of Prisons,

U.S. Dep’t of Justice, Progress Report for Arnold F.

Hohn (1995). Petitioner’s liability for the assessment

depends on the validity of his Section 924(c) conviction,

and it does not depend in any way on his other con-

victions. Cf. Ray v. United States, 481 U.S. 736 (1987)

(per curiam) (sentence not concurrent when special

assessment imposed on each count); see, e.g., United

States v. Hughey, 147 F.3d 423, 433 n.5 (5th Cir.)

(ordering refund of assessment on vacated conviction),

cert. denied, 525 U.S. 1030 (1998); United States v.

Rosario, 111 F.3d 293, 300 (2d Cir.) (same), cert. denied,

522 U.S. 923, 522 U.S. 969 (1997). Thus, petitioner’s

challenge to his conviction would not be moot even if

there were no presumption of collateral consequences,

and, in particular, even if the possibility of a future

recidivist enhancement did not suffice to establish a live

controversy. Cf. Glickman v. Wileman Bros. & Elliott,

Inc., 521 U.S. 457, 463 n.5 (1997) (challenge to termi-

nated regulation not moot in light of plaintiffs’ prayer

for refund of assessments paid before termination).

Neither party called the special assessment on the

Section 924(c) count to the attention of the court of

appeals. That court thus has not had the opportunity to

consider the effect of the assessment on its analysis of

the mootness issue. If, on remand, the court of appeals

agrees that petitioner’s motion is not moot because of

the special assessment, then the court of appeals may

choose not to address the general mootness question

discussed in its initial opinion in this case. The court

could instead proceed to determine whether the district

court correctly denied petitioner’s Section 2255 motion

because he cannot excuse his procedural default of his

Bailey claim. Likewise, plenary review to address this

Court’s mootness doctrine with respect to challenges to

convictions for which the sentence has been fully served

is not warranted here because the special assessment

makes it unnecessary to determine any broad legal

question. Cf. Ray v. United States, 481 U.S. 736, 737

(1987) (declining to determine the role of the concurrent

sentence doctrine in the federal courts because the

special assessment made the sentences not concurrent).

3. For similar reasons, plenary review is not war-

ranted to resolve any disagreement among the courts of

appeals on how to apply the presumption that criminal

convictions have collateral consequences. As petitioner

observes (Pet. 17, 18-19), the courts of appeals have

expressed different views about whether the pre-

sumption is rebuttable. The Ninth Circuit has held that

the presumption is irrebuttable because “[o]nce con-

victed, one remains forever subject to the prospect of

harsher punishment for a subsequent offense as a result

of federal and state [repeat offender] laws.” Chacon v.

Wood, 36 F.3d 1459, 1463 (9th Cir. 1994), superseded on

other grounds, 28 U.S.C. 2253(c). Accordingly, that

court has concluded that “there is simply no way ever

(for the government] to meet the Sibron mootness re-

quirement: that there be ‘no possibility’ of collateral

legal consequences.” Chacon, 36 F.3d at 1463. No other

circuit, however, has ruled out the possibility that the

presumption may be rebutted in a particular case.

Nevertheless, that inconsistency between the Ninth

Circuit’s approach and the decisions of the other cir-

cuits does not warrant this Court’s review. As the

Ninth Circuit has observed, both the federal Sentencing

Guidelines and the sentencing schemes of many States

rely on prior convictions as a basis for penalty enhance-

ments. See Chacon, 36 F.3d at 1463. Thus, even in

those circuits that hold open the theoretical possibility

of rebuttal, the prospect of future enhancements based

on a felony or misdemeanor conviction can seldom, if

ever, be ruled out.

The government is aware of only two published court

of appeals’ decisions holding that a collateral attack on a

criminal conviction was moot because there was no

possibility of collateral consequences from the con-

viction, and neither of those decisions has significant

continuing precedential value. In Malloy v. Purvis, 681

F.2d 736 (11th Cir. 1982), the court of appeals found

that a defendant’s collateral attack on a forgery convic-

tion was moot. But the defendant in that case had,

following the forgery conviction, been sentenced to life

imprisonment without parole, and the forgery convic-

tion was not one of the prior offenses relied upon by the

sentencing court in imposing that sentence. See id. at

739 n.2; id. at 739 (Wisdom, J., specially concurring).

Moreover, the Eleventh Circuit has questioned the

vitality of Malloy in light of subsequent cases, Minor v.

Dugger, 864 F.2d 124, 126, 127 (1989), and has made

clear that, notwithstanding Malloy, a challenge to a

criminal conviction is not moot “where the conviction

could be used for enhancement purposes.” Jd. at 126.

In Broughton v. North Carolina, 717 F.2d 147, 148-

149 (4th Cir. 1983) (per curiam), cert. denied, 466 U.S.

940 (1984), the Fourth Circuit dismissed as moot a

habeas attack on 2 misdemeanor contempt-of-court

conviction for which the petitioner had served 30 days

in jail, because the court concluded that the conviction

did not create any risk of a future sentence enhance-

ment under the state sentencing law then in effect. Jd.

at 149 (citing N.C. Gen. Stat. §15A-1340.4 (1981)). Like

Malloy, however, Broughton does not appear to be of

continuing significance. The conviction at issue in

Broughton now could result in a sentence enhancement

under the United States Sentencing Guidelines. See

Guidelines §§ 4A1.1(c), 4A1.2(c)(1) (directing sentencing

court to increase criminal history score based on prior

sentences of 30 or more days imposed on misdemeanor

convictions, including contempt convictions). Moreover,

a later Fourth Circuit decision has narrowed

Broughton’s impact. See Nakell v. Attorney General of

North Carolina, 15 F.3d 319, 322-323 (4th Cir.) (attor-

ney’s habeas challenge to criminal contempt conviction

not moot under Broughton because of possible refund of

fine and prospect of disciplinary action by bar), cert.

denied, 513 U.S. 866 (1994).

There is also not any significant disagreement among

the courts of appeals about who has the burden of dem-

onstrating the presence or absence of collateral conse-

quences from a criminal conviction. Those courts of

appeals that have addressed the issue require the party

asserting mootness to overcome the presumption

that collateral consequences result from a challenged

criminal conviction. See, e.g., Minor, 864 F.2d at 125;

Bryan v. Duckworth, 88 F.3d 431, 433 (7th Cir. 1996).

The government is not aware of any court of appeals

that has held to the contrary. None of the decisions

cited by petitioner as placing the burden of proof on the

criminal defendant (Pet. 19-20 & n.9) actually discussed

the issue of which party has the burden of proving or

disproving that a criminal conviction has sufficient

collateral consequences to preclude mootness.

Moreover, two of the decisions did not even involve

habeas petitions or motions under 28 U.S.C. 2255 chal-

lenging prior convictions. The Third Circuit’s decision

in Steele v. Blackman, 236 F.3d 130 (2001), involved a

challenge to an alien exclusion order based on the

classification of a prior offense as an “aggravated

felony,” and the First Circuit’s decision in Arnold v.

Panora, 593 F.2d 161 (1979), involved a civil suit. Thus,

there is no reason for this Court to grant review to

address the burden of proof issue.

In any event, this case does not provide an appropri-

ate vehicle for review of any disagreement among the

courts of appeals on the questions whether the pre-

sumption of collateral consequences is rebuttable, and,

if it is, who bears the burden of proof. Petitioner him-

self asserts (Pet. 18-20) that his Section 2255 motion

would be justiciable in all but the Eighth Circuit. See

Pet. 15 n.7. As discussed above, petitioner suffers from

a concrete consequence of the challenged Section 924(c)

conviction—his liability for the $50 special assessment

imposed by the district court at sentencing. Accord-

ingly, his case is not moot regardless of whether the

presumption of collateral consequences is rebuttable

and of who bears the burden of proof. -

CONCLUSION

The petition for a writ of certiorari should be

granted, the judgment of the court of appeals vacated,

and the case remanded for further consideration.

Respectfully submitted.