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dismissing appeal on mootness grounds where "time-served" sentence was above Guidelines range
Summary of this case from Jacob v. United StatesOpinion
No. 06-4446-cr.
January 4, 2008.
Appeal from the United States District Court for the Western District of New York (Elfvin, J.).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED AND DECREED that the appeal is DISMISSED as moot.
SUBMITTING FOR APPELLANT: M. KIRK OKAY, Batavia, New York.
SUBMITTING FOR APPELLEE: MONICA J. RICHARDS, Assistant United States Attorney, for Terrance P. Flynn, United States Attorney for the Western District of New York, Buffalo, New York.
PRESENT: HON. DENNIS JACOBS, Chief Judge , HON. ROSEMARY S. POOLER, HON. ROBERT D. SACK, Circuit Judges.
Alfredo Fernandez-Quesada pled guilty to one count of credit card fraud in violation of 18 U.S.C. § 1029(a)(1) and was sentenced principally to time served which, at the time of sentencing, amounted to almost 38 months' imprisonment. On appeal, Fernandez-Quesada argues that, for a number of potentially valid reasons, the time-served sentence was an unlawful upward departure from the advisory Guidelines range of 10 to 16 months. We assume the parties' familiarity with the underlying facts, the procedural history, and the issues presented for review.
Fernandez-Quesada's only continuing interest in this appeal arose from the government's representation that he remained a target of a related criminal investigation pending in the Southern District of Florida. He contended that, if convicted and incarcerated in that matter, he could apply for credit for time served above and beyond the lawful sentence imposed in the New York case. See 18 U.S.C. § 3585(b);United States v. Hamdi, 432 F.3d 115, 118 (2d Cir. 2005) (finding appeal justiciable after expiration of term of imprisonment if it "would relieve [the convicted defendant] of some concrete and identifiable collateral effect of that sentence"); United States v. Mercurris, 192 F.3d 290, 293 (2d Cir. 1999) (observing that a criminal case remains "a live case or controversy if there exists `some concrete and continuing injury' or `collateral consequence' resulting from the conviction") (quoting Spencer v. Kemna, 523 U.S. 1, 7 (1998)).
While this appeal was pending, the government informed the Court that the Florida criminal investigation has been closed and the United States Attorney's Office for the Southern District of Florida has declined to prosecute Fernandez-Quesada. Because Fernandez-Quesada can no longer identify some "concrete and continuing injury" or "collateral consequence" that would be redressed by a favorable judicial outcome here, his appeal cannot be maintained.
We lack jurisdiction to hear an appeal when it becomes moot while pending. See U.S. Const., Art. III, § 2, cl. 1 ("case" or "controversy" requirement). "In order to satisfy the case-or-controversy requirement, a party must, at all stages of the litigation, have an actual injury which is likely to be redressed by a favorable judicial decision."Mercurris, 192 F.3d at 293 (citing Kemna, 523 U.S. at 7). "[I]f an event occurs while a case is pending on appeal that makes it impossible for the court to grant `any effectual relief whatever' to a prevailing party, the appeal must be dismissed." Church of Scientology of California v. United States, 506 U.S. 9, 12 (1992) (quoting Mills v. Green, 159 U.S. 651, 653 (1895)).
For the foregoing reasons, the appeal is DISMISSED.