United States v. Hensel , 377 F. App'x 748 ( 2010 )


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  •                                                                        FILED
    United States Court of Appeals
    Tenth Circuit
    May 3, 2010
    UNITED STATES COURT OF APPEALS
    Elisabeth A. Shumaker
    TENTH CIRCUIT                     Clerk of Court
    UNITED STATES OF AMERICA,
    Plaintiff-Appellee,                       No. 09-2283
    v.                                           (D. New Mexico)
    CRAIG HARRIS HENSEL,                         (D.C. No. 2:03-CR-00734-JEC-1)
    Defendant-Appellant.
    ORDER AND JUDGMENT *
    Before HENRY, PORFILIO and BRORBY, Circuit Judges.
    After examining the briefs and appellate record, this panel has determined
    unanimously that oral argument would not materially assist in the determination
    of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is
    therefore ordered submitted without oral argument.
    *
    This order and judgment is not binding precedent except under the
    doctrines of law of the case, res judicata, and collateral estoppel. It may be cited,
    however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th
    Cir. R. 32.1.
    I. BACKGROUND
    Craig Harris Hensel admitted that he violated the conditions of his
    supervised release by testing positive for methamphetamine and by failing to
    submit urine samples. The district court imposed a six-month sentence, followed
    by a year of supervised release. Mr. Hensel timely appealed.
    On January 4, 2010, Mr. Hensel’s counsel filed an Anders brief and has
    moved to withdraw as counsel. See Anders v. California, 
    386 U.S. 738
     (1967).
    Under Anders, “counsel [may] request permission to withdraw [from an appeal]
    where counsel conscientiously examines a case and determines that any appeal
    would be wholly frivolous.” United States v. Calderon, 
    428 F.3d 928
    , 930 (10th
    Cir. 2005) (citing Anders, 
    386 U.S. at 744
    ). This process requires counsel to:
    submit a brief to the client and the appellate court indicating any
    potential appealable issues based on the record. The client may then
    choose to submit arguments to the court. The Court must then conduct
    a full examination of the record to determine whether defendant's
    claims are wholly frivolous. If the Court concludes after such an
    examination that the appeal is frivolous, it may grant counsel's motion
    to withdraw and may dismiss the appeal.
    
    Id.
     (citing Anders, 
    386 U.S. at 744
    ).
    Mr. Hensel filed a one-page document noting that he “did not intend to file
    a response” and that his “lawyer has abandoned [him].” Letter to the Court, filed
    Mar. 17, 2010. He noted that because he would “be released on 3/30/10 . . . the
    appeal is moot.” 
    Id.
     The government has declined to respond.
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    II. DISCUSSION
    Before we can consider the merits of Mr. Hensel’s appeal, we are obliged
    to first examine our jurisdiction. See Moseley ex rel. Moseley v. Bd. of Educ., 
    483 F.3d 689
    , 693-94 (10th Cir. 2007). “Article III [of the Constitution] requires a
    party seeking relief to have ‘suffered, or be threatened with, an actual injury
    traceable to the appellee and likely to be redressed by a favorable judicial
    decision.’” United States v. Vera-Flores, 
    496 F.3d 1177
    , 1180 (10th Cir. 2007)
    (alterations omitted) (quoting United States v. Meyers, 
    200 F.3d 715
    , 718 (10th
    Cir. 2000)). “When the injury . . . disappears or is resolved extrajudicially prior
    to the appellate court's decision, the appellant can no longer satisfy the Article III
    case or controversy jurisdictional requirement and the appeal is moot.” Meyers,
    
    200 F.3d at 718
    .
    Next, we must examine all the proceedings to determine whether Mr.
    Hensel’s appeal is frivolous. Anders, 
    386 U.S. at 744
    . “If [we] so find[ ] [we]
    may grant counsel’s request to withdraw and dismiss the appeal.” 
    Id.
     “On the
    other hand, if [we] find[ ] any of the legal points arguable on their merits (and
    therefore not frivolous) [we] must, prior to decision, afford the indigent
    [defendant] the assistance of counsel to argue the appeal.” 
    Id.
    Mr. Hensel was originally charged with and pleaded guilty to one count of
    conspiracy to distribute methamphetamine, in violation of 
    21 U.S.C. §§ 841
    (1)(b)(1)(B) and 846, and two counts of distribution of methamphetamine, in
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    violation of 
    21 U.S.C. §§ 841
    (a), (b)(1)(B) and (b)(1)(C) and 
    18 U.S.C. § 2
    . He
    received concurrent terms of imprisonment of seventy-two months, followed by a
    four-year term of supervised release, pursuant to 
    21 U.S.C. §§ 841
    (b)(1)(B)(viii).
    The judgment included a special condition of supervised release that Mr. Hensel
    not illegally possess a controlled substance, refrain from the use of most
    intoxicants, and that he participate in and successfully complete a substance abuse
    treatment program that may included drug testing. Aplt’s Br. Attachment A, at 4.
    He commenced his term of supervised release on September 17, 2007.
    On September 25, 2009, his probation officer filed a petition to revoke Mr.
    Hensel’s supervised release, alleging (1) that Mr. Hensel tested positive for
    methamphetamine on August 18, 2009, and (2) that he failed to submit to required
    urine testing on June 24, June 30, July 13, and September 8, 2009.
    At an October 21, 2009 hearing Mr. Hensel admitted the alleged violations.
    Mr. Hensel explained he had a good job and he would like to seek help to control
    his addiction. His counsel explained that Mr. Hensel’s daughter was ill with a
    very rare genetic disease, causing extra stress on the family. The government
    requested a low-end sentence. The district court reviewed the violation report,
    and calculated Mr. Hensel’s sentence under USSG § 7B1.1, with consideration of
    the factors listed in 
    18 U.S.C. § 3553
    (a)(1). In considering the sentence for this
    violation, the court calculated an imprisonment range of six to twelve months, and
    imposed a six-month sentence, followed by a year of supervised release.
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    A. Mootness
    Once a criminal defendant has completed his sentence, his appeal is moot
    unless “sufficient collateral consequences flow from the conviction and completed
    sentence.” Meyers, 
    200 F.3d at 718
    . There are many significant consequences of
    being convicted of a felony. For example, felons often lose many basic civil
    liberties, including the right to vote or to hold public office. Spencer v. Kemna,
    
    523 U.S. 1
    , 9-10 (1998). Therefore, when a defendant appeals the validity of his
    conviction, we presume that the consequences are sufficient to overcome any
    question of mootness. 
    Id. at 7-8
    . However, no such presumption applies when
    the defendant concedes his guilt and merely challenges the length of his sentence.
    Vera-Flores, 
    496 F.3d at 1180
    .
    “Where judicial relief will not remedy the appellant’s injury, the appellant
    can no longer satisfy the Article III case or controversy jurisdictional requirement
    and the appeal is moot.” 
    Id.
     (quotation marks omitted). “In this circuit, under
    ordinary circumstances, a defendant who has served his term of imprisonment but
    is still serving a term of supervised release may challenge his sentence if his
    unexpired term of supervised release could be reduced or eliminated by a
    favorable appellate ruling.” 
    Id.
    Mr. Hensel has not identified any collateral consequences that would be
    remedied by a successful appeal of the revocation of his supervised release. We
    agree with Mr. Hensel that to the extent he might have raised error related to the
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    October 21, 2009 hearing regarding the revocation of supervised release or his
    resulting six-month term of imprisonment, his appeal is moot. Indeed, publicly
    available Bureau of Prison records indicate that Mr. Hensel completed his prison
    term and was released on March 30, 2010. See Federal Bureau of Prisons, Inmate
    Locator, http://www.bop.gov/iloc2/LocateInmate.jsp (last visited Apr. 9, 2010).
    B. Merits of remaining possible challenges
    We note that Mr. Hensel’s release from prison on March 30, 2010, does not
    render this entire appeal moot, because his sentence included a period of
    supervised release which the district court could in its discretion shorten or if this
    case were remanded. The district court has discretion regarding the length of
    supervised release, see 
    18 U.S.C. § 3583
    (a)-(b), and can change the supervised
    release period, see § 3583(e)(2). United States v. Allen, 
    434 F.3d 1166
    , 1170 (9th
    Cir. 2006).
    However, there is no reason for a remand, because any challenge Mr.
    Hensel might raise to the length or conditions of his supervised release is
    frivolous. The district court clearly articulated valid reasons for imposing a
    sentence at the bottom of the advisory guidelines range for the revocation of Mr.
    Hensel’s term of supervised release. See also United States v. Brooks, 
    976 F.2d 1358
    , 1360-61 (10th Cir.1992) (upholding sentence as reasoned and reasonable
    where district court demonstrates awareness of USSG § 7B1 policy statements,
    requested briefing from counsel, and clearly states its reasons for imposing a
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    sentence above the advisory guideline range). We have fully examined the
    proceedings as required by Anders and conclude that to the extent Mr. Hensel
    might raise any live issues relating to the length or condition of his supervised
    release, they are wholly without merit.
    III. CONCLUSION
    Given Mr. Hensel’s release, and our thorough review of the record, we
    conclude that Mr. Hensel’s challenge to the reasonableness of his six-month term
    of imprisonment is moot and that there are no meritorious issues extant relating to
    his supervised release for our review on direct appeal. Accordingly, we GRANT
    counsel’s motion to withdraw and we DISMISS the appeal.
    Entered for the Court
    Robert H. Henry, Circuit Judge
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