Case: 14-10846   Document: 00513081319        Page: 1   Date Filed: 06/16/2015




        IN THE UNITED STATES COURT OF APPEALS
                 FOR THE FIFTH CIRCUIT


                                    No. 14-10846                  United States Court of Appeals
                                                                           Fifth Circuit

                                                                         FILED
UNITED STATES OF AMERICA,                                            June 16, 2015
                                                                    Lyle W. Cayce
             Plaintiff - Appellee                                        Clerk

v.

DAVID HEREDIA-HOLGUIN,

             Defendant - Appellant




                Appeal from the United States District Court
                     for the Northern District of Texas


Before REAVLEY, OWEN, and HIGGINSON, Circuit Judges.
STEPHEN A. HIGGINSON, Circuit Judge:
      David Heredia-Holguin pleaded guilty to illegal reentry following a
previous deportation. The district court sentenced him to twelve months of
imprisonment, followed by a three-year term of supervised release. Since filing
this appeal, Heredia-Holguin has completed his term of imprisonment, been
released from custody, and been removed to Mexico. As explained below, we
dismiss the appeal and deny Heredia-Holguin’s request to vacate his
remaining term of supervised release.
                       FACTS AND PROCEEDINGS
      In 2005, Heredia-Holguin lost his status as a lawful permanent resident
of the United States and was removed from the country to Mexico. In
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                                 No. 14-10846
September 2006, Heredia-Holguin returned to the United States without legal
permission. Several years later, in August 2013, he was arrested on state and
federal drug charges. After the drug charges were dismissed, Heredia-Holguin
remained in federal custody and was charged with illegally reentering the
country after deportation. He entered into a plea agreement and pled guilty.
      The district court sentenced Heredia-Holguin to twelve months in prison,
followed by a three-year term of supervised release. The district court
explained that supervised release would “offer an additional potential sanction
against the defendant should he subsequently be deported and then try to
unlawfully come back into this country.” Heredia-Holguin did not object in the
district court to his sentence or the conditions of supervised release. Instead,
he filed a notice of appeal from the judgment of conviction and sentence. But
while his appeal was pending, and before he filed his initial brief in the Fifth
Circuit, Heredia-Holguin was released from prison and deported, having
completed his one-year prison sentence. His three-year term of supervised
release nevertheless remains in effect.
      Following his deportation, Heredia-Holguin’s counsel filed an initial
brief conceding that Heredia-Holguin’s deportation rendered this appeal moot.
He also filed a motion to vacate the district court’s sentence or the term of
supervised release. In response, the Government filed an unopposed motion to
dismiss the appeal as moot.
      In response to these filings, this court ordered supplemental briefing on
three issues: (1) what error, if any, Heredia-Holguin complains of on appeal;
(2) whether the appeal has become moot under United States v. Rosenbaum-
Alanis, 

(5th Cir. 2007), United States v. Lares-Meraz, 

(5th Cir. 2006) (per curiam), and Federal Rule of Criminal Procedure 43;
and (3) if the appeal is moot, whether the court should vacate Heredia-
Holguin’s conviction, sentence, or term of supervised release under the doctrine
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                                  No. 14-10846
of equitable vacatur. Having received and reviewed the parties’ supplemental
briefs, we now dismiss the appeal and deny Heredia-Holguin’s request to
vacate his remaining term of supervised release.
                                 DISCUSSION
      Two Fifth Circuit decisions address the question of whether deportation
moots a sentencing appeal. These decisions, however, arrived at opposite
conclusions. First, in United States v. Lares-Meraz, this Court held that
deportation did not moot a sentencing 

. In that case,
the defendant similarly appealed his sentence of one year of imprisonment and
three years of supervised release. 

Also like Heredia-Holguin, the
defendant completed his prison term during the pendency of the appeal and
was released and deported to Mexico. 

term of supervised
release—which also “require[d] that he not reenter the United States
illegally”—still remained in effect. 

The court concluded that the
sentencing appeal was not moot “because [the defendant] remain[ed] subject
to a term of supervised release, an element of the overall sentence.” 

Only after reaching this conclusion did the court go on to observe that the
alleged sentencing error, “while harmful in theory because it affected [the
defendant’s] substantial rights at the time, [was] an error that [was],
practically speaking, harmless . . . as a result of deportation.” 

& n.3.
As a result, the court affirmed the sentence. 

      The next year, in United States v. Rosenbaum-Alanis, we reached the
opposite conclusion on 

. There, the defendant had
been sentenced, based on an erroneous enhancement, to eighteen months of
imprisonment, followed by a three-year term of supervised release. See 

The defendant appealed his sentence. Again, while his appeal was
pending, the defendant completed the confinement portion of his sentence and
was released and deported. 

This time, however, the court concluded
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                                   No. 14-10846
that it could grant no relief: “Because the defendant has been deported . . . and
is legally unable, without permission of the Attorney General, to reenter the
United States to be present for a resentencing proceeding as required by
[Federal Rule of Criminal Procedure] 43, there is no relief we are able to grant
him and his appeal is moot.” 

went on to explicitly discuss and distinguish
Lares-Meraz: “The panel [in Lares-Meraz] was not faced with the prospect of
resentencing the defendant because defense counsel conceded that any
sentencing error was harmless.” 

therefore concluded that Lares-
Meraz did not control in Rosenbaum-Alanis:
       By conceding that any error which formed the basis for his appeal
       was harmless and presenting no argument that militated against
       affirming the sentence, the defendant in Lares-Meraz did not seek
       any relief that the court could not grant. By contrast, in
       [Rosenbaum-Alanis], the defendant, who is barred from entering
       the United States, and who therefore cannot be resentenced,
       requests relief which we are unable to grant.

court rejected the defendant’s argument that remand was
appropriate because there was a possibility that the defendant’s presence at
resentencing could be waived. 

emphasized that no waiver was
apparent in the record on appeal and that the possibility of a waiver in the
future was speculative. 

therefore dismissed the appeal as moot.

unclear which case—Lares-Meraz or Rosenbaum-Alanis—controls
Heredia-Holguin’s appeal. On the one hand, Lares-Meraz may control because,
like the defendant in that case, Heredia-Holguin still faces a term of supervised
release, which is an element of his overall sentence. 

.
Rosenbaum-Alanis, on the other hand, may control because resentencing
might be required to correct any of the alleged errors related to Heredia-


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                                      No. 14-10846
Holguin’s remaining term of supervised release. 1 

–83.
Nevertheless, as he emphasized in his supplemental briefing, Heredia-Holguin
is not pursuing his sentencing appeal and requests only that we vacate the
remaining term of his supervised release. We therefore need not resolve the
inconsistencies we perceive in Lares-Meraz and Rosenbaum-Alanis. 2
       Next, assuming this appeal is moot, we deny Heredia-Holguin’s request
to vacate his remaining term of supervised release. The Supreme Court has
instructed that “[v]acatur is in order when mootness occurs through
happenstance—circumstances not attributable to the parties—or . . . the
‘unilateral action of the party who prevailed in the lower court.’” Arizonans for
Official English v. Arizona, 

, 71–72 (1997) (quoting U.S. Bancorp
Mortg. Co. v. Bonner Mall P’ship, 

, 23 (1994)). The Supreme Court
has abandoned its former rule of “automatic” vacatur for cases that become
moot on appeal. See U.S. Bancorp Mortg. 

–25; Fleming &
Assocs. v. Newby & Tittle, 

, 638 n.3 (5th Cir. 2008). Now, “[u]nder
current law, the appropriateness of equitable vacatur is determined by
weighing the equities on a case-by-case basis.” Fleming & 

n.3; see also Staley v. Harris Cnty., Tex., 

, 310 (5th Cir. 2007)
(en banc) (“[V]acatur is to be determined on a case-by-case basis, governed by
facts and not inflexible rules.”). Here, the burden is on Heredia-Holguin to


       1  We note, however, that a defendant does not have to be present to seek modification
of his term of supervised release under 18 U.S.C. § 3583(e). See United States v. Franco-
Munoz, 241 F. App’x 182, 182–83 (5th Cir. 2007) (per curiam); United States v. Argueta-
Hernandez, 225 F. App’x 336 (5th Cir. 2007) (per curiam); United States v. Ayala-Flores, 225
F. App’x 333, 334 (5th Cir. 2007) (per curiam); see also Fed. R. Crim. P. 32.1(c)(2)(B), (C).
        2 Because the harmless-error analysis did not inform the court’s mootness conclusion

in Lares-Meraz, 

–56, we have difficulty seeing the distinction that our
court tried to draw in Rosenbaum-Alanis when it concluded that Lares-Meraz did not control,
see 

; cf. United States v. Jurado-Lara, 287 F. App’x 704,
707 (10th Cir. 2008) (declining to adopt the “blanket rule” from Rosenbaum-Alanis); United
States v. Blackburn, 

, 267 n.3 (2d Cir. 2006) (citing Lares-Meraz favorably on
the issue of mootness).
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                                      No. 14-10846
demonstrate that vacatur is appropriate. 

. He has not
met that burden. 3
       Heredia-Holguin’s deportation was foreseen and cannot be attributed to
happenstance or the unilateral action of the Government. Deportation was the
natural consequence of Heredia-Holguin’s reentering the country illegally after
his previous deportation. Indeed, in entering into the plea agreement, Heredia-
Holguin recognized that he was pleading guilty to a removable offense and that
removal was “presumptively mandatory.” He nevertheless affirmed that he
wanted to plead guilty, regardless of the immigration consequences.
       In considering whether equitable vacatur is appropriate, this court also
considers the public interest, including “whether vacatur might be abused by
the losing party to advance a legal position rejected by the lower court.” 

Bancorp Mortg. 

–27). Here, the district court
imposed the term of supervised release to deter Heredia-Holguin from illegally
returning to the United States. See United States v. Dominguez-Alvarado, 

, 329 (5th Cir. 2012) (interpreting § 5D1.1 of the sentencing guidelines
as leaving district courts discretion to impose supervised release in cases
“where added deterrence and protection are needed”); see also U.S.S.G. § 5D1.1
cmt. n.5 (“The court should . . . consider imposing a term of supervised release
on . . . a [deportable alien] defendant if the court determines it would provide
an added measure of deterrence and protection based on the facts and
circumstances of a particular case.”). Significantly, the district court imposed
supervised release despite the PSR’s observation that courts ordinarily should
not impose supervision when a defendant is deportable and also despite


       3Because Heredia-Holguin has not met this burden, we save for another day the task
of addressing the Government’s argument that equitable vacatur is a civil doctrine that is
not available in a criminal case as a matter of law. We need not resolve this issue because,
even if the remedy is available in a criminal case, the equities do not support vacating
Heredia-Holguin’s supervised release in this case.
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                                  No. 14-10846
Heredia-Holguin’s request not to impose supervision. Moreover, in light of the
ongoing deterrent effect of the term of supervised release, see United States v.
Brown, 

, 237–39 (5th Cir. 1995); U.S.S.G. § 4A1.1(d) (noting that
two points are added to a defendant’s criminal history score if he commits a
crime while still serving a term of supervised release), as well as Heredia-
Holguin’s failure to object to the imposition of supervised release in the district
court in the first instance, we decline to exercise our equitable discretion to
vacate Heredia-Holguin’s term of supervised release.
                                CONCLUSION
      For the reasons stated above, we DISMISS this appeal without prejudice
to Heredia-Holguin’s right to seek a modification of his term of supervised
release, and DENY Heredia-Holguin’s request to vacate his remaining term of
supervised release.




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