UNITED STATES v. SAENZ (2021)

MEMORANDUM ***

Raul Ernest Saenz appeals from the district court's order dismissing his 28 U.S.C. § 2255 motion to vacate and correct his sentence. We affirm.

The district court correctly held that Saenz's § 2255 motion was untimely. As Saenz acknowledges, we rejected the same arguments he advances here in United States v. Blackstone, 903 F.3d 1020 (9th Cir. 2018). There, we held that Johnson v. United States, 576 U.S. 591, 135 S.Ct. 2551, 192 L.Ed.2d 569 (2015), did not recognize a new right applicable to the mandatory Sentencing Guidelines or to 18 U.S.C. § 924(c) on collateral review. Blackstone, 903 F.3d at 1026–28. Saenz's § 2255 motion is therefore untimely.

We note that Saenz's challenge to his career-offender status under the Sentencing Guidelines is not moot simply because he has been released from custody. It is true, of course, that a defendant ordinarily may not challenge a sentence that has expired during the course of the proceedings. Lane v. Williams, 455 U.S. 624, 631, 102 S.Ct. 1322, 71 L.Ed.2d 508 (1982). However, while Saenz has been granted release, he has not completed his sentence: he remains subject to the three years of supervised release imposed concurrently for each count of conviction. Where, as here, a “district court has the statutory discretion to modify a defendant's term of supervised release following a successful sentencing challenge, the possibility that the district court may exercise such discretion following this court's decision is sufficient to prevent an appeal from becoming moot.” United States v. D.M., 869 F.3d 1133, 1137 (9th Cir. 2017) (quoting United States v. Strong, 489 F.3d 1055, 1060 (9th Cir. 2007)). If Saenz's challenge to his career-offender status were meritorious, “there is a nontrivial possibility that the district court ․ [would] reduce his term of supervised release under § 3583(e).” Allen v. Ives, 950 F.3d 1184, 1187 (9th Cir. 2020); see also 18 U.S.C. § 3583(e)(2) (“The court may ․ modify, reduce, or enlarge the conditions of supervised release, at any time prior to the expiration or termination of the term of supervised release.”).

We also note, as to the challenge to his § 924(c) convictions, that Saenz filed an “amended/renewed” § 2255 motion in the district court within one year of the Supreme Court's decision in United States v. Davis, ––– U.S. ––––, 139 S. Ct. 2319, 204 L.Ed.2d 757 (2019), which invalidated the residual clause of § 924(c), under which Saenz was found to have been convicted of a crime of violence. That motion remains pending and may provide a vehicle for Saenz to pursue his claims.

Nevertheless, because we conclude that Saenz's motion is untimely, we do not reach his arguments as to the merits of his motion.

AFFIRMED.