United States v. Robert Packer ( 2023 )

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
No. 22-3070 September Term, 2022
FILED ON: JUNE 16, 2023
UNITED STATES OF AMERICA,
APPELLEE
v.
ROBERT KEITH PACKER,
APPELLANT
Appeal from the United States District Court
for the District of Columbia
(No. 1:21-cr-00103-1)
Before: SRINIVASAN, Chief Judge, and MILLETT and CHILDS, Circuit Judges.
JUDGMENT
This appeal was considered on the record from the United States District Court for the
District of Columbia and on the briefs and oral argument of the parties. The panel has accorded
the issues full consideration and has determined that they do not warrant a published opinion. See
D.C. Cir. R. 36(d). It is hereby
ORDERED AND ADJUDGED that the appeal be dismissed as moot.
Appellant Robert Packer pled guilty to parading, demonstrating, or picketing in a Capitol
building, in violation of 40 U.S.C. § 5104(e)(2)(G). The Statement of Offense to which Packer
agreed contained a section entitled “Robert Packer’s Participation in the January 6, 2021, Capitol
Riot.” Statement of Offense at 3, App. 33. According to that Statement, Packer “attend[ed] the
rally of former President Trump in Washington, D.C. on January 6, 2021,” and “then went to the
Capitol building and went inside,” where he was “with the crowd” when, among other things, “the
large mob breached the police line . . . to go into the House side of the Capitol.” Id.In his plea agreement, Packer waived his right to appeal his conviction and sentence, with
certain exceptions. The district court sentenced Packer to 75 days of imprisonment, $500 in
restitution, and a $10 special assessment. See 18 U.S.C. §§ 3013(a)(1)(A)(ii), 3663; 40 U.S.C.
§ 5109(b). Packer was not sentenced to any term of probation or supervised release.
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In this appeal, Packer contends that the district court, in fashioning Packer’s sentence of
imprisonment, impermissibly relied on the fact that Packer wore a shirt on the day of the offense
that bore the words “Camp Auschwitz” and “Work Means Freedom.” During the pendency of the
appeal, Packer completed his 75-day term of imprisonment and was released from the custody of
the Bureau of Prisons. See Gov’t Br. 13.
We hold that Packer’s appeal is moot and thus do not reach the merits of his claim. The
sole claim Packer brings in this appeal is a challenge to his sentence, and his briefing limits that
challenge to one seeking relief from his 75-day term of imprisonment. Accordingly, he frames the
relevant issue he raises as whether “the district court err[ed] in imposing a sentence of seventy-
five (75) days of imprisonment by improperly taking into account an offensive t-shirt worn by
defendant/appellant that contained the words ‘Camp Auschwitz.’” Packer Br. 1. And he argues
that the “trial court erroneously considered the offensive t-shirt in fashioning the prison sentence
of seventy-five (75) days of incarceration.” Id. at 5–6; see id. at 5 (“The United States made
reference to the offensive language in its sentencing Memorandum and the trial court clearly
referenced the offensive words in fashioning a sentence. Defendant/appellant received a sentence
of imprisonment of seventy-five days.”). Similarly, in setting out the “rulings at issue in this
appeal,” Packer identifies the “trial court’s imposition of a sentence of seventy-five (75) days of
incarceration and whether the sentence was based upon an improper consideration that
defendant/appellant was wearing a t-shirt with an offensive expression.” Id. at i.
Packer’s completion of his 75-day term of imprisonment renders his appeal moot. “[I]f an
event occurs while a case is pending on appeal that makes it impossible for the court to grant ‘any
effectual relief whatever’ to a prevailing party, the appeal must be dismissed.” Honeywell Int’l,
Inc. v. Nuclear Regul. Comm’n, 628 F.3d 568, 576 (D.C. Cir. 2010) (quotation marks and citation
omitted). Here, Packer challenges his 75-day term of imprisonment on the ground that the district
court impermissibly based that term on Packer’s wearing of an offensive t-shirt, but it is impossible
for us to grant him any effectual relief with regard to the 75-day term of imprisonment he
challenges because he has already served it, and he has not alleged that he has suffered any
collateral consequences from it.
At oral argument, Packer asserted for the first time that a live controversy persists because,
even if his term of imprisonment has expired, the district court’s sentence included a $500 order
of restitution. See Oral Argument at 0:37–0:58. But in his brief, Packer challenges only the length
of his sentence of imprisonment and does not challenge the restitution order, and a challenge
sought to be raised for the first time at oral argument is forfeited. See Ark Las Vegas Rest. Corp.
v. NLRB, 334 F.3d 99, 108 n.4 (D.C. Cir. 2003). At any rate, while Packer mentioned the
restitution award at oral argument in contending that the appeal is not moot, he has never suggested
that his challenge on appeal—i.e., that the district court considered an impermissible factor in
fashioning Packer’s sentence—pertains to the restitution award. Rather, Packer’s argument all
along has been that his 75-day term of imprisonment impermissibly rested on his wearing of an
offensive t-shirt, and he has never suggested that the amount of the restitution award turned in any
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way on that consideration. That is unsurprising given that he agreed to the $500 amount of the
award in his plea agreement, separate from (and well before) the sentencing hearing at which he
alleges that the district court improperly took into account his t-shirt in fashioning his term of
imprisonment.
That is presumably why in his brief, Packer challenges only the length of his sentence of
imprisonment and not the restitution order. Indeed, whereas his brief, as explained, repeatedly
frames his challenge as one contending that the 75-day term of imprisonment rested on an
impermissible consideration, his brief mentions the $500 restitution amount only once in passing
in the background section as something he agreed to pay in his plea agreement. Packer Br. 3. Nor
is it the case that Packer’s challenge to the length of his term of imprisonment somehow implicitly
incorporates a challenge to the restitution award: to the contrary, the length of a term of
imprisonment does not bear on the amount of a restitution award under the governing statutes. See
18 U.S.C. §§ 3663, 3664. In short, the sole challenge Packer raises in his appeal—to his 75-day
term of imprisonment—was mooted by his release upon completing that term.
Pursuant to D.C. Circuit Rule 36, this disposition will not be published. The Clerk is
directed to withhold issuance of the mandate until seven days after resolution of any timely petition
for rehearing or rehearing en banc. See Fed. R. App. P. 41(b); D.C. Cir. R. 41.
Per Curiam
FOR THE COURT:
Mark J. Langer, Clerk
BY: /s/
Daniel J. Reidy
Deputy Clerk