United States v. John Perotti , 702 F. App'x 322 ( 2017 )

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 17a0434n.06
Case No. 16-3556
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
FILED
Jul 24, 2017
UNITED STATES OF AMERICA, ) DEBORAH S. HUNT, Clerk
)
Plaintiff-Appellee, )
) ON APPEAL FROM THE UNITED
v. ) STATES DISTRICT COURT FOR
) THE NORTHERN DISTRICT OF
JOHN PEROTTI, ) OHIO
)
Defendant-Appellant. )
)
)
BEFORE: SILER, CLAY, and McKEAGUE, Circuit Judges.
SILER, Circuit Judge. After Johnson v. United States, 135 S. Ct. 2551 (2015), was
decided, John Perotti was permitted to file a successive habeas corpus petition and had his
sentence corrected as one of his prior convictions no longer qualified as a predicate felony under
the Armed Career Criminal Act (ACCA). At the government’s request, Perotti was resentenced
to time served and two years of supervised release. At the time of Perotti’s release from federal
custody, he had served more time than the newly-applicable statutory maximum for his
underlying conviction. Perotti appeals his sentence since his actual time served exceeded the
newly-applicable statutory maximum and the time served could impact his disposition should his
supervised release be revoked. We dismiss Perotti’s appeal as his claims are moot.
Case No. 16-3556, United States v. Perotti
FACTUAL AND PROCEDURAL BACKGROUND
Perotti was found guilty by a jury of being a felon in possession of ammunition in
violation of 18 U.S.C. § 922(g)(1). Under 922(g), the maximum term of imprisonment is ten
years. The jury also found Perotti had three prior felony convictions, qualifying him for
enhanced sentencing under the ACCA, 18 U.S.C. § 924(e). This increased Perotti’s statutory
sentencing range to fifteen years to life imprisonment. The district court imposed a sentence of
210 months to be followed by three years of supervised release.
On direct appeal, Perotti challenged whether his 1982 conviction for Ohio aggravated
robbery, in violation of then O.R.C. § 2911.01(A)(1), was properly counted as an ACCA
predicate. We held that it did so under the ACCA’s residual clause. United States v. Perotti, 226
F. App’x 516, 518–19 (6th Cir. 2007).
In 2015, the Supreme Court held that the ACCA’s residual clause, 18 U.S.C.
§ 924(e)(2)(B), was unconstitutionally vague. Johnson, 135 S. Ct. at 2557. On Perotti’s motion,
we authorized him to file a successive § 2255 petition in the district court. In re John Perotti,
No. 15-3955 (6th Cir. Mar. 14, 2016) (order).
In adjudicating Perotti’s § 2255 petition, the district court concluded that he no longer
qualified for an enhanced sentence under the ACCA. This meant that his statutory maximum
sentence reverted to the ten years applicable to his underlying conviction. The district court, at
the government’s request, imposed a sentence of time served and two years of supervised release
and ordered Perotti released from federal custody. At the time of his release, Perotti had served
nearly twelve years in federal custody. He was then taken into state custody where he remains.
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STANDARD OF REVIEW
Questions of mootness and ripeness are jurisdictional and are reviewed de novo. Lewis v.
Cont’l Bank Corp., 494 U.S. 472, 477 (1990) (mootness); Ammex, Inc. v. Cox, 351 F.3d 697, 706
(6th Cir. 2003) (ripeness).
DISCUSSION
For us to have jurisdiction, a live case or controversy must exist on appeal. Mootness is
“the doctrine of standing set in a time frame.” Arizonans for Official English v. Arizona,
520 U.S. 43, 68 n.22 (1997) (quoting United States Parole Comm’n v. Geraghty, 445 U.S. 388,
397 (1980)). The existence of an Article III case or controversy at the district court is
insufficient to confer appellate jurisdiction—the case must still be live during appellate
proceedings. We do not issue advisory opinions. George Fischer Foundry Sys., Inc. v. Adolph
H. Hottinger Maschinenbau GmbH, 55 F.3d 1206, 1210 (6th Cir. 1995). The government asserts
that Perotti’s challenge to his sentence was mooted when he was released from federal custody.
If Perotti was challenging his conviction, then that would satisfy the case or controversy
requirement as continuing adverse consequences are presumed. Spencer v. Kemna, 523 U.S. 1,
7–8 (1998). Perotti is not challenging his conviction but is instead challenging only the part of
his sentence he has already completed, so this presumption does not apply and he must point to
some other continuing adverse consequence. Id. at 8. In considering whether Perotti has pointed
to such a harm, we note that an increased sentence in a potential future criminal proceeding is
insufficient to confer appellate jurisdiction. Lane v. Williams, 455 U.S. 624, 632 (1982).
The first adverse consequence Perotti claims confers appellate jurisdiction is the potential
that he will lose the opportunity to have his over-time served credited to him should his
supervised release be revoked. This harm is too uncertain to be cognizable. It could only arise if
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Perotti violates the terms of his federal supervised release, something we cannot assume will
occur and do not wish to encourage. There would also need to be a revocation hearing, a finding
of a violation, and the imposition of a sentence. Because none of those events has occurred,
appellate jurisdiction does not exist on the basis of this alleged harm.
The second consequence that Perotti claims allows appellate review is that without
resentencing he will be unable to have his time spent in custody properly considered by the
district court should it consider shortening the two-year period of federal supervised release it
imposed at resentencing. The Supreme Court has made clear that excessive time served in prison
does not automatically reduce a defendant’s period of supervised release. See United States v.
Johnson, 529 U.S. 53, 60 (2000) (“The statute, by its own necessary operation, does not reduce
the length of a supervised release term by reason of excess time served in prison.”). But the
Court also recognized that “equitable considerations of great weight exist when an individual is
incarcerated beyond the proper expiration of his prison term” and that under 18 U.S.C. § 3583(e)
district courts have the power to modify the terms and length of supervision. Ibid. A court
overseeing Perotti’s supervised release could, using this power, terminate his supervised release
after one year. 18 U.S.C. § 3583(e)(1). The decision to modify or terminate supervision is
entrusted to the discretion of the district court and is based on a number of factors, including
behavior during supervised release. There is no reason why, in such a future proceeding,
Perotti’s recorded sentence of “time served” would preclude the court from considering that he
spent nearly twelve years in prison when an intervening change in the law altered his statutory
maximum sentence to ten years. This asserted harm is also insufficient to confer appellate
jurisdiction.
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The third alleged adverse consequence that Perotti asserts confers appellate jurisdiction is
that he will be unable to have his case accurately considered by the Ohio Adult Parole Authority
(OAPA). The state parole violation for which Perotti is currently incarcerated derives from the
same conduct underlying his federal conviction, and for Perotti this underscores the necessity of
correcting his federal sentence. Because the OAPA must consider a myriad of factors (none of
which is dispositive) in reaching its determinations, Ohio Admin. Code 5120:1-1-07, Perotti’s
situation is similar to the one presented to the Supreme Court by the petitioners in Spencer and
Lane. Just as under Missouri law (Spencer) and Illinois law (Lane), the discretion available to
the OAPA means that it is only a possibility and not a certainty that over-time served will be
considered. See Spencer, 523 U.S. at 14; Lane, 455 U.S., at 632 n.13. This is true even though
the same conduct formed the basis for both the underlying federal conviction and the violation of
state parole. The discretion vested in the OAPA and uncertainty as to the grounds on which it
will base its decision means this alleged harm is also insufficient to confer appellate jurisdiction.
For each of Perotti’s claims, it is also uncertain that a favorable judicial decree would
afford Perotti the relief he seeks. For both state parole proceedings and any future federal
revocation proceedings, we cannot compel a particular outcome. Perotti’s current imprisonment
is the result of a violation of the terms of parole on a state charge that is not before us. Should he
eventually face incarceration for violating the terms of his federal supervised release, discretion
on whether to credit and how to calculate prior time served rests in the first instance with the
Bureau of Prisons. See Barber v. Thomas, 560 U.S. 474, 480 (2010). Because we are unable to
direct a particular outcome in those future proceedings, any opinion we issue would be merely
advisory. Should the hypothetical federal proceedings contemplated by Perotti’s appeal come to
pass, he can then present the claims he seeks to raise in this proceeding. At this juncture, they
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are unripe and so do not save Perotti’s appeal from having been rendered moot when he was
released from federal custody.
APPEAL DISMISSED.
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