15-581
     Vale v. United States


                             UNITED STATES COURT OF APPEALS
                                 FOR THE SECOND CIRCUIT

                                      SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY
ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF
APPELLATE PROCEDURE 32.1 AND THIS COURT=S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER
IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN
ELECTRONIC DATABASE (WITH THE NOTATION ASUMMARY ORDER@). A PARTY CITING TO A SUMMARY
ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

 1                 At a stated term of the United States Court of Appeals for the Second Circuit,
 2   held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of
 3   New York, on the 26th day of September, two thousand sixteen.
 4
 5   PRESENT:
 6               DENNIS JACOBS,
 7               DEBRA ANN LIVINGSTON,
 8                     Circuit Judges,
 9               JED S. RAKOFF,
10                     District Judge.
11   _____________________________________
12
13   Jason Vale,
14
15                             Petitioner-Appellant,
16                      v.                                                      15-581
17
18   United States of America,
19
20                     Respondent-Appellee.
21   ____________________________________
22
23   FOR PLAINTIFF-APPELLANT:                                    Jason Vale, pro se, Bellerose Manor,
24                                                               NY.
25
26   FOR RESPONDENT-APPELLEE:                                    David C. James, Charles S.
27                                                               Kleinberg, Assistant United States
28                                                               Attorneys, Brooklyn, NY.

      Judge Jed S. Rakoff, of the United States District Court for the Southern District of New York,
     sitting by designation.
      
 1          Appeal from a judgment of the United States District Court for the Eastern District of New

 2   York (Gleeson, J.).

 3          UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND

 4   DECREED that the judgment of the district court is AFFIRMED.

 5          Appellant Jason Vale, pro se, appeals the denial of his petition for a writ of audita querela

 6   and coram nobis.      Vale argued that the sentence imposed for his 2004 criminal contempt

 7   conviction was improper because it was based upon the fraud guideline without a jury finding that

 8   Vale committed fraud, in violation of the Sixth Amendment, as interpreted in Apprendi v. New

 9   Jersey, 

(2000). We assume the parties’ familiarity with the underlying facts, the

10   procedural history of the case, and the issues on appeal.

11          We review de novo a district court’s denial of a writ of audita querela. United States v.

12   Richter, 

, 104 (2d Cir. 2007) (per curiam). We review the denial of a writ of error

13   coram nobis for abuse of discretion, but conduct a de novo review with respect to whether the

14   district court applied the proper legal standard. United States v. Mandanici, 

, 524

15   (2d Cir. 2000).

16          Vale’s challenge to his sentence is moot because he has already completed his terms of

17   imprisonment and supervised release, and there are no apparent continuing injuries or collateral

18   consequences stemming from his conviction. See United States v. Mercurris, 

, 293

19   (2d Cir. 1999). In any event, his Apprendi argument is barred by the law of the case doctrine

20   because the substance of his argument has already been rejected by this Court and, to the extent it

21   was not, it is barred because the issue could have been decided earlier. See United States v.

22   Williams, 

, 471 (2d Cir. 2007). Finally, Apprendi affected a district court’s authority


                                                      2
1   to determine sentencing factors that necessarily increased a defendant’s sentence beyond the

2   statutory maximum; it did not otherwise affect a district court’s ability to determine relevant

3   conduct pursuant to the guidelines by a preponderance of the evidence. See United States v.

4   Vaughn, 

, 524-25 (2d Cir. 2005).

5          We have considered all of Vale’s remaining arguments and find them to be without merit.

6   Accordingly, we AFFIRM the judgment of the district court.

7                                              FOR THE COURT:
8                                              Catherine O’Hagan Wolfe, Clerk




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