Speculation By The Second Circuit

United States v. Blackburn, Docket No. 05-1875-cr (July 26, 2006) (majority opinion here and dissent here)

Blackburn plead guilty to the offenses with which he was charged and received a non-Guidelines sentence of 37 months imprisonment and three years of supervised release.  Blackburn appealed.  By the time his appeal was argued, however, Blackburn had already completed his term of imprisonment and was in the process of serving his three-year term of supervised release.  (My-oh-my how slowly the wheels of justice turn.)  Finding that there "is every indication in the record that the district court would not reduce Blackburn's term of supervised release on remand," the Second Circuit denied Blackburn's appeal as moot because there was no possibility of the district court reducing the term of supervised release upon remand and, thus, Blackburn did not have a continuing stake in the outcome of the case (in other words, there was no case or controversy for the Second Circuit to adjudicate).

This seems like the wrong result.  Specifically, the question of whether or not the district court committed error in imposing its original sentence seems independant from the question of whether or not a reversal and remand for resentencing will have any impact.  Moreover and as the dissent recognized, Second Circuit law has "made clear that we should not speculate as to what a district court may do in resentencing a defendant [post-Booker] except in very limited circumstances that are not present here."  Indeed, the Second Circuit's extensive discussion of the district court record in support of its conclusion that the district court would not reduce Blackburn's term of supervised release upon remand seems besides the point and, in fact, indicates implicitly that it too was not extremely confident in its decision.  Indeed, if it were, it would have had no reason to provide page-upon-page of rationalization and justification for its conclusion that the district court would not revise Blackburn's term of supervised release upon remand.  As summarized by the dissent, "the restrictions imposed by the terms of Blackburn's supervised-release term constitute concrete injury, caused by his conviction and sentence, and redressable (at least in part) by a resentencing proceeding.  The majority therefore errs in determining that Blackburn's claim is moot rather than concluding than any error was harmless."