GIESE v. UNITED STATES (2021)

[Unpublished]

In a motion to vacate his sentence under 28 U.S.C. § 2255, David Giese argued that counsel was ineffective for failing to seek a downward departure at sentencing for aberrant behavior. See U.S.S.G. § 5K2.20. After denying relief, the district court ¹ granted a certificate of appealability.

We conclude that this case is now moot because Giese has been released from prison. A ruling here would not affect the supervised-release term he is currently serving, nor are there any collateral consequences from leaving the district court's order in place. See U.S.S.G. § 5D1.2(a) & cmt. n.4 (recommending supervised-release terms based on statutory factors and the crime's classification, rather than offense-level and criminal-history calculations under the Sentencing Guidelines); see also Owen v. United States, 930 F.3d 989, 990 (8th Cir. 2019) (holding that release will moot a § 2255 motion when the petitioner “challenge[s] only his term of imprisonment” and not “the term of supervised release”). And, of course, no remedy is available to shorten a term of imprisonment that Giese has already served. See Owen, 930 F.3d at 990. We accordingly dismiss the appeal.

FOOTNOTES

1.   The Honorable Karen E. Schreier, United States District Judge for the District of South Dakota.

PER CURIAM.