UNITED STATES v. VIPHONGXAI (2021)

[Unpublished]

After Kouang Viphongxai pleaded guilty to one count of passing counterfeit obligations or securities of the United States, see 18 U.S.C. §§ 2, 472, the district court ¹ sentenced him to 27 months’ imprisonment and 3 years’ supervised release. Viphongxai appealed, arguing that the district court committed procedural error in imposing a five-point offense-level increase under U.S.S.G. § 2B5.1(b)(2)-(3), which affected the calculation of his advisory sentencing guidelines range.

While this appeal was pending, the Government informed us that on April 5, 2021, Viphongxai was released from the Bureau of Prisons’ custody to begin his term of supervised release. Because Viphongxai challenged on appeal only his sentence of imprisonment, we ordered Viphongxai to address whether his appeal was moot. See Owen v. United States, 930 F.3d 989, 989-91 (8th Cir. 2019) (dismissing an appeal as moot because the appellant challenged only the length of his term of imprisonment but completed that term and was released from prison while the appeal was pending). In response, Viphongxai stated that he “takes no position on mootness.”

“[W]e have no jurisdiction over appeals that are moot.” United States v. Evans, 690 F.3d 940, 943 (8th Cir. 2012). Because Viphongxai challenged on appeal only the length of his term of imprisonment, and he has completed that term, we conclude that this appeal is moot. See Owen, 930 F.3d at 990. Accordingly, we dismiss this appeal.

FOOTNOTES

1.   The Honorable Rebecca Goodgame Ebinger, United States District Judge for the Southern District of Iowa.

PER CURIAM.