Case: 18-13936 Date Filed: 04/26/2019 Page: 1 of 6
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 18-13936
Non-Argument Calendar
________________________
D.C. Docket No. 1:13-cr-20583-WJZ-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JOSEPH AKINS OWANIKIN,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
________________________
(April 26, 2019)
Before WILSON, NEWSOM, and HULL, Circuit Judges.
PER CURIAM:
Case: 18-13936 Date Filed: 04/26/2019 Page: 2 of 6
Joseph Owanikin appeals a sentence of 48-months imprisonment and three
years of supervised release imposed after he pleaded guilty to one count of filing a
fraudulent tax return with the Internal Revenue Service, in violation of
18 U.S.C.
§ 287. Owanikin argues that the district court clearly erred in calculating his
sentence. In particular, he maintains that despite his having clearly challenged the
loss amount and the number of victims detailed in his sentencing report, and
despite the government presenting no evidence in response—much less the
preponderance of “reliable and specific evidence” it is required to provide, United
States v. Rodriguez,
732 F.3d 1299, 1305 (11th Cir. 2013)—the court accepted
these issues as proven for purposes of enhancing Owanikin’s sentence. “It is the
district court’s duty to ensure that the Government carries [its] burden by
presenting reliable and specific evidence.” United States v. Lawrence,
47 F.3d
1559, 1566 (11th Cir. 1995). We conclude that the district court failed to fulfill
that duty here.
We review the district court’s calculation of the loss amount and the number
of victims for clear error. United States v. Ford,
784 F.3d 1386, 1396 (11th Cir.
2015) (loss amount); Rodriguez, 732 F.3d at 1305 (number of victims). “Although
review for clear error is deferential, a finding of fact must be supported by
substantial evidence.” United States v. Robertson,
493 F.3d 1322, 1330 (11th Cir.
2007). Here, Owanikin specifically challenged the loss amount of $585,000 and
2
Case: 18-13936 Date Filed: 04/26/2019 Page: 3 of 6
number of victims indicated in his PSI, orally and in writing. See United States v.
Aleman,
832 F.2d 142, 145 (11th Cir. 1987). But instead of holding the
government to its resulting evidentiary burden, the district court relied on the
government’s assertions and enhanced Owanikin’s sentence accordingly. This
amounts to clear error. Rodriguez, 732 F.3d at 1305; Robertson,
493 F.3d at 1330.
Specifically, the district court erred by relying solely on the government’s
arguments at the sentencing hearing—rather than evidence—to resolve disputed
facts. Indeed, there was no evidence or stipulation as to the loss amount submitted
either with the factual proffer, at the change of plea hearing, prior to sentencing, or
at the sentencing hearing itself.
Were Owanikin still in prison, that might be the end of the matter. But
Owanikin was released from custody on December 13, 2018. See
https://www.bop.gov/inmateloc/ (last visited April 2, 2019). He is currently
completing his period of supervised release. This raises a “fundamental
[jurisdictional] question”: Have events since the filing of Owanikin’s appeal—
namely, the completion of his sentence and release from prison—deprived this
Court of the ability to grant Owanikin “meaningful relief”? United States v. Al-
Arian,
514 F.3d 1184, 1189 (11th Cir. 2008) (internal quotations and citations
omitted). In simpler terms, is this case moot?
3
Case: 18-13936 Date Filed: 04/26/2019 Page: 4 of 6
The Supreme Court has repeatedly recognized that the possibility that a
criminal defendant will suffer “collateral legal consequences,” even from a
sentence already served, precludes a finding of mootness. See, e.g., Minnesota v.
Dickerson,
508 U.S. 366, 371 n.2 (1993); Jago v. Van Curen,
454 U.S. 14, 21 n.3,
(1981); North Carolina v. Rice,
404 U.S. 244, 247 & n.2 (1971). This Court has
done the same. See, e.g., Dawson v. Scott,
50 F.3d 884, 886 n.2 (11th Cir. 1995)
(“[T]he government contends that this appeal is moot. We disagree. Dawson is
still serving his term of supervised release, which is part of his sentence and
involves some restrictions upon his liberty.”).
It nonetheless remains Owanikin’s burden to indicate “some ongoing
collateral consequenc[e] that is traceable to the challenged portion of the sentence
and likely to be redressed by a favorable judicial decision.” United States v.
Juvenile Male,
564 U.S. 932, 936 (2011) (internal quotations and citations
omitted); Spencer v. Kemna,
523 U.S. 1, 8–14 (1998) (refusing to presume
collateral consequences from parole). Owanikin has met that burden here.
Owanikin cannot leave the Southern District of Florida without permission; he is
subject to unannounced visits; he must obtain permission to change his residence;
and he cannot incur debt. As Owanikin summarizes, he “generally must do
whatever the probation officer instructs.” Owanikin Supplemental Brief at 5.
Such restrictions on Owanikin’s liberty amount to an ongoing collateral
4
Case: 18-13936 Date Filed: 04/26/2019 Page: 5 of 6
consequence traceable to the district court’s decision. See Jago,
454 U.S. at 21 n.3
(finding the case to not be moot despite respondent’s release from prison because
“respondent must receive written permission before changing his residence,
changing his job, or traveling out of state, must report to local law enforcement
authorities at any out-of-state destination to which he travels, must not maintain a
checking account, must report monthly to his parole officer, and may be
imprisoned upon violation of the conditions of his parole”).
The government disagrees, arguing that even if Owanikin is suffering
collateral consequences, they are not “likely to be redressed by a favorable judicial
decision.” Reviewing the record below, the government finds no evidence to
support the view that, had the district court imposed a shorter sentence of
imprisonment, it would have also imposed a shorter term of supervised release.
The clear error already indicated persuades us that the district court should have
another look. Confronted with its prior error, a “favorable . . . decision” for
Owanikin may—or may not—follow. 1
1
We do not prejudge the issue. We recognize that regardless of the length of his prison
sentence, the applicable supervised-release term would have been between one and three years if
the district court chose to impose one because Owanikin committed a Class D felony. See
U.S.S.G. § 5D1.2(a)(2) (stating when “a term of supervised release is ordered, the length of the
term shall be … [a]t least one year but not more than three years for a defendant convicted of a
Class C or D felony”). Nothing in this opinion constrains the district court’s determination of
supervised release on remand.
5
Case: 18-13936 Date Filed: 04/26/2019 Page: 6 of 6
Accordingly, we REMAND for the district court to review Owanikin’s
conviction and sentence in order to determine whether Owanikin is entitled to a
shorter period of supervised release.
6
