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United States v. King

United States Court of Appeals, Ninth Circuit

June 4, 2018

United States of America, Plaintiff-Appellee,
v.
Marcel Daron King, Defendant-Appellant.

          Argued and Submitted March 16, 2018 San Francisco, California

          Appeal from the United States District Court for the Northern District of California William H. Alsup, District Judge, Presiding D.C. No. 3:10-cr-00455-WHA-1

          Carmen A. Smarandoiu (argued), Chief, Appellate Unit; Daniel P. Blank, Senior Litigator; Steven G. Kalar, Federal Public Defender; Office of the Federal Public Defender, San Francisco, California; for Defendant-Appellant.

          Philip Kopczynski (argued), Assistant United States Attorney; J. Douglas Wilson, Chief, Appellate Division; Alex G. Tse, Acting United States Attorney; United States Attorney's Office, San Francisco, California; for Plaintiff-Appellee.

          Before: J. Clifford Wallace and Marsha S. Berzon, Circuit Judges, and Kimberly J. Mueller, [*] District Judge.

         SUMMARY [**]

         Criminal Law The panel dismissed as moot an appeal from a revocation of supervised release.

         The panel held that the appeal was moot because the Bureau of Prisons had unconditionally released the defendant from custody, and his sentence was complete. The panel found insufficient to avoid mootness the collateral consequence that the revocation charge, which involved a finding that the defendant committed statutory rape, could require him to register as a sex offender in the future.

          OPINION

          MUELLER, DISTRICT JUDGE

         This appeal arises from a revocation of supervised release. In January 2017, after an evidentiary hearing on statutory rape allegations, the district court revoked Marcel King's term of supervised release and sentenced him to 24 months in prison. On appeal, King argues the district court violated his due process rights by excluding him from the courtroom for a portion of the minor victim's testimony and by admitting into evidence a hearsay report without live witness authentication.

         King's appeal was fully briefed on October 31, 2017. On January 5, 2018, the Bureau of Prisons unconditionally released him from custody. His sentence is complete. The government argues King's appeal is now moot because King identifies no "ongoing" collateral consequences caused by his revocation. King counters that he does face collateral consequences, namely, the potential that his revocation charge, which involved a finding that he committed statutory rape, could require him to register as a sex offender and could affect his ability to visit his children.

         Although King raises a novel collateral consequences argument, the consequences he identifies are, under controlling case law, inadequate to maintain his case here. As explained below, this appeal is MOOT.

         I.

         In the parole revocation context, the Supreme Court has held that without proof of ongoing collateral consequences from that revocation, an unconditional release from custody moots a defendant's challenge to his allegedly erroneous revocation. Spencer v. Kemna, 523 U.S. 1, 8-16 (1998). Our Circuit has not extended Spencer to the supervised release revocation context in a precedential opinion. In United States v. Palomba, 182 F.3d 1121, 1123 (9th Cir. 1999), we did cite Spencer in dismissing for lack of standing a defendant's challenge to the sentencing court's criminal history score calculation. In that case, because Palomba challenged only the length of his "now-completed" term of prison and supervised release-and not the "correctness of [his] conviction"-he lacked standing unless he could show the alleged miscalculation caused collateral consequences. ...


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