NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT _____________

No. 18-2673 _____________

UNITED STATES OF AMERICA

v.

GLEN JOSEPH, Appellant

On Appeal from the United States District Court for the Eastern District of Pennsylvania District Court No. 5-14-cr-00621-001 District Judge: The Honorable Jeffrey L. Schmehl

Submitted Pursuant to Third Circuit L.A.R. 34.1(a) September 25, 2019

Before: SMITH, Chief Judge, McKEE, and AMBRO, Circuit Judges

(Filed: September 26, 2019) _____________________

OPINION* _____________________

* This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not constitute binding precedent. SMITH, Chief Judge.

Defendant Glen Joseph challenges the sentence he received following his

conviction of various offenses via jury trial. Specifically, Joseph argues that the

District Court failed to adequately consider a future state parole sentence resulting

from the same underlying conduct and failed to give Joseph an acceptance of

responsibility adjustment to which he was entitled. BOP records indicate that Joseph

was released from prison on May 28, 2019.

As a threshold matter, we must address whether we have jurisdiction to

adjudicate this appeal. See United States v. Grape,

(3d Cir. 2008).

Where a criminal defendant is challenging a sentence that he has already served in

its entirety, he generally must prove that he is suffering a continuing injury in order

to avoid mootness. See United States v. Kissinger,

(3d Cir. 2002).

In some instances, a defendant may be able to establish continuing jurisdiction where

he is serving a term of supervised release and it is likely that the District Court would

credit time overserved in prison against the term of supervised release. See United

States v. Cottman,

(3d Cir. 1998). As to this option, however, the

Supreme Court has since clarified that a term of supervised release is separate from

a term of incarceration and should not be reduced based only on the fact a defendant

overserved in prison. United States v. Johnson,

(2000). Following

Johnson, our Court therefore held that it must be “likely” that the sentencing court

2 would reduce the defendant’s term of supervised release in order for there to be a

live case or controversy after a defendant has been released. Burkey v. Marberry,

, 149–50 (3d Cir. 2009).

In supplemental briefing addressing the question of jurisdiction, Joseph

identified no collateral consequences stemming from the alleged sentencing error.

Instead, Joseph argues only that “if he prevails on his appeal and his case is

remanded for resentencing, he may receive a credit against his term of supervised

release for the excess term of imprisonment to which he was subjected.” Suppl. Br.

4. In making this argument, Joseph relies on United States v. Jackson,

(3d Cir. 2008). In Jackson, however, the defendant was serving a term of

supervised release and on appeal was challenging the length of that term of

supervised release.

(“Since Jackson is currently serving a term of

supervised release, and because her challenge is to whether that term of release is

reasonable, the issues of mootness and jurisdiction . . . do not arise.”). Thus, the

reasoning in Jackson is inapposite. See Burkey v. Marberry,

(3d

Cir. 2009) (“In Jackson, we held that collateral consequences are presumed where

the appellant was still serving a term of supervised release and her challenge was to

the reasonableness of the supervised release term. Where, however, the appellant is

attacking a sentence that has already been served, collateral consequences will not

be presumed, but must be proven.” (internal citation omitted)).

3 Here, we see no reason to conclude the District Court would be likely to

reduce the supervised release sentence it imposed a year ago, nor did Joseph suggest

any basis for such a conclusion. Indeed, he points to nothing more than a speculative

chance that the District Court might reduce his supervised release term. Under

Burkey, this is far too thin a basis for the exercise of appellate jurisdiction. Burkey,

(“The possibility that the sentencing court will use its discretion to

modify the length of Burkey’s term of supervised release . . . is so speculative that

any decision on the merits . . . would be merely advisory.”).

Nor could Joseph provide anything more than speculation, as the record

indicates it is unlikely that the District Court would reduce Joseph’s term of

supervised release. He faced a supervised release range of one to three years, and

the District Court chose to impose the high end of that range. The independent

import of the supervised release sentence, separate and apart from the term of

incarceration, is demonstrated by the special conditions of supervised release

imposed by the District Court, which include participation in a mental health

program, among other things. See United States v. Johnson,

(2000)

(“In the instant case, the transition assistance ordered by the trial court required

respondent, among other conditions, to avoid possessing or transporting firearms

and to participate in a drug dependency treatment program. These conditions

4 illustrate that supervised release, unlike incarceration, provides individuals with

postconfinement assistance.”). Under Burkey, this case is therefore moot.1

Because Joseph has failed to establish that we have jurisdiction, we will

dismiss this appeal.

1 Joseph remains free to seek a modification of the term of supervised release under

(e)(1). See also United States v. Johnson,

(2000). 5