and Submitted March 16, 2018 San Francisco, California
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
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.
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.
Law The panel dismissed as moot an appeal from a revocation
of supervised release.
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.
MUELLER, DISTRICT JUDGE
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
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.
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.
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.