Wednesday, June 13, 2018

King v. US, No. 17-10006 (6-4-18)(Mueller w/Wallace & Berzon).

What makes a supervised release appeal moot? Here, the 9th held that the unconditional release from custody mooted the appeal from the revocation of SR and term of imprisonment.  King argued it was not moot because of collateral consequences. In revoking, the district court found he committed statutory rape. As such, King feared he could be forced to register as a sex offender, or that visitation with his children could be affected.

The 9th recognizes the novel aspects.  What are collateral consequences, and how certain must they be?  In Spencer v. Kemna, 523 US 1 (1998), the Supremes found release from parole and sentence mooted the alleged appeal to an erroneous revocation.  The 9th extends Spencer to SR, as does the 1st, 2nd, 3rd, 4th, and 5th.  For there to be collateral consequences, there must be continuous and continuing injury. The future possibility of registration being extended to a finding made by preponderance of evidence is just a possibility: there is nothing on the horizon and no threat at present. It is not a continuous or continuing injury.  The possibility, now, is mere speculation. 

Well fought appeal by AFPDs Carmen Smarandoiu and Dan Blank of FPD Cal N (San Francisco).

The decision is here:


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