United States v. Dennis Sittman ( 2021 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS AUG 6 2021
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 20-15125
Plaintiff-Appellee, D.C. Nos.
1:19-cv-00311-ACK-KJM
v. 1:91-cr-00921-ACK-1
DENNIS J. SITTMAN,
MEMORANDUM*
Defendant-Appellant.
Appeal from the United States District Court
for the District of Hawaii
Alan C. Kay, District Judge, Presiding
Submitted August 4, 2021**
San Francisco, California
Before: THOMAS, Chief Judge, and HAWKINS and McKEOWN, Circuit
Judges.
Dennis Sittman appeals the district court’s denial of his petition for a writ of
error coram nobis and/or a writ of audita querela. We have jurisdiction under 28
U.S.C. § 1291. Reviewing de novo, see United States v. Riedl, 496 F.3d 1003,
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
1005 (9th Cir. 2007); United States v. Hovsepian, 359 F.3d 1144, 1153 (9th Cir.
2004) (en banc), we affirm.
“A person seeking a writ of audita querela must show . . . a legal defect in
the underlying sentence or conviction.” Hovsepian, 359 F.3d at 1154 (citation and
internal quotation marks omitted). To establish entitlement to a writ of error coram
nobis, Sittman must establish that “(1) a more usual remedy is not available;
(2) valid reasons exist for not attacking the conviction earlier; (3) adverse
consequences exist from the conviction sufficient to satisfy the case or controversy
requirement of Article III; and (4) the error is of the most fundamental character.”
Riedl, 496 F.3d at 1006 (quoting Hirabayashi v. United States, 828 F.2d 591 (9th
Cir. 1987)).
Thus, for Sittman to receive relief, he must establish that he faces collateral
consequences. See id.; United States v. Fonseca-Martinez, 36 F.3d 62, 65 (9th Cir.
1994) (per curiam) (considering the collateral consequences “sufficient to justify
issuance of the writ” of audita querela); see also Doe v. INS, 120 F.3d 200, 203 n.4
(9th Cir. 1997) (explaining that the difference between the writs “is one of timing,
not substance”). He has not done so. Because only the length of the sentence is at
issue, not the correctness of the conviction itself, there is no presumption of
collateral consequences. See United States v. Juv. Male, 564 U.S. 932, 936 (2011)
(“When a defendant challenges only an expired sentence, no such presumption
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applies, and the defendant must bear the burden of identifying some ongoing
collateral consequence that is traceable to the challenged portion of the sentence
and likely to be redressed by a favorable judicial decision.” (cleaned up)). Sittman
has fully served the sentence that he challenges. On appeal, he identifies only the
allegedly excess time served, but granting his petition would have no effect on that
consequence. Any excess time served—if there were any—would not have been
credited against the supervised release time Sittman was serving at the time he
filed this petition, which was for a different offense. See United States v. Johnson,
529 U.S. 53, 59 (2000) (“The objectives of supervised release would be unfulfilled
if excess prison time were to offset and reduce terms of supervised release”).
AFFIRMED.
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