March 9, 2021 Christopher M. Wolpert Clerk of Court UNITED STATES COURT OF APPEALS… v. Ricky Ray Crespin

FILED
United States Court of Appeals
Tenth Circuit
March 9, 2021
Christopher M. Wolpert
Clerk of Court
UNITED STATES COURT OF APPEALS
TENTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
RICKY RAY CRESPIN,
Defendant - Appellant.
Nos. 19-4155 & 21-4009
(D.C. No. 1:07-CR-00043-TC-1)
(D. Utah)
ORDER AND JUDGMENT*
Before TYMKOVICH, Chief Judge, MURPHY, and HARTZ, Circuit Judges.
Ricky Ray Crespin was convicted of being a felon illegally in possession of
a firearm. See 18 U.S.C. § 922(g)(1). The district court sentenced him to a ten-
year term of incarceration, the maximum term for a violation of § 922(g). See id.
§ 924(a)(2). The district court also ordered that Crespin serve, following his
release from prison, a thirty-six-month term of supervised release. See id.
§ 3583(b)(2) (authorizing imposition of a term of supervised release of no more
*This order and judgment is not binding precedent except under the
doctrines of law of the case, res judicata, and collateral estoppel. It may be cited,
however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th
Cir. R. 32.1.
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than three years when the underlying conviction is a “Class C” felony); id.
§ 3559(a)(3) (designating as a “Class C” felony any crime “if the maximum term
of imprisonment authorized is . . . less than twenty-five years but ten or more
years”).
Crespin began serving his term of supervised release on August 12, 2019.
One week later, a United States Probation Officer petitioned the district court to
issue a warrant for Crespin’s arrest. An accompanying violation report alleged
Crespin violated the terms of his supervised release by committing two Utah state
crimes and asked the district court to revoke Crespin’s supervision pursuant to the
terms of 18 U.S.C. § 3583(e)(3). The district court held an evidentiary hearing on
the probation officer’s request to revoke Crespin’s term of supervision. At the
hearing, Crespin asserted, inter alia, that the district court could not impose upon
him any further term of incarceration for a violation of the terms of supervised
release because he had already served the maximum term of imprisonment. In so
arguing, Crespin relied on the Supreme Court’s recent decision in United States v.
Haymond, 139 S. Ct. 2369 (2019). The district court revoked Crespin’s
supervised release (the “First Revocation”) and, after concluding Haymond did
not apply to revocation proceedings under § 3583(e)(3), ordered him to serve a
fourteen-month term of incarceration and a twenty-two month term of supervised
release (the “Second Term of Supervised Release”). Crespin appealed, in No. 19-
-2-
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4155, asserting the district court erred in concluding Haymond did not apply to
revocation proceedings brought under § 3583(e)(3).
While appeal No. 19-4155 was pending, Crespin completed the term of
incarceration imposed upon his First Revocation and began serving his Second
Term of Supervised Release. This court directed the parties to address whether
the expiration of Crespin’s fourteen-month term of incarceration mooted his
Haymond-based challenge to his imprisonment. The parties filed response briefs
arguing as to whether the pendency of Crespin’s Second Term of Supervised
Release saved from mootness his Haymond-based appeal. On January 7, 2021,
this panel held oral argument on both the merits of the Haymond issue and the
question of mootness. Shortly thereafter, the district court revoked Crespin’s
Second Term of Supervised Release pursuant to the terms of § 3583(e)(3),
imposed upon Crespin an eight-month term of incarceration, and declined to order
any further term of supervision. Crespin appealed, in No. 21-4009, again
asserting the district court erred in concluding Haymond did not preclude the
imposition of a further term of incarceration. In response to this court’s order to
show cause, the parties specifically consented to the procedural consolidation of
these two appeals (Nos. 19-4155 and 21-4009) and to having both appeals
resolved on the previously submitted briefing and oral argument in No. 19-4155.
-3-
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On February 16, 2021, this court issued its opinion in United States v.
Salazar, No. 19-3217, 2021 WL 561431 (10th Cir. Feb. 16, 2021). Facing a
merits argument and potential mootness issue almost perfectly analogous to the
issues before the court in these appeals, Salazar held as follows: (1) a challenge
to a term of imprisonment is not moot as long as a defendant is serving a term of
supervised release which could be reduced by a favorable appellate decision, id.
at *2-*3; (2) the decision in Haymond does not apply to § 3583(e)(3), id. at *3-
*10.
Given the decision in Salazar, it is clear the district court did not err in
rejecting Crespin’s assertion that, because he was given a maximum term of
incarceration on his original (i.e., underlying) sentence, he could not be subject to
a term of imprisonment upon revocation of supervised release. Accordingly, the
judgment entered by the district court in No. 21-4009 is hereby affirmed.
Crespin’s appeal in No. 19-4155 is hereby dismissed as moot. This court cannot
provide Crespin with any effective relief in No. 19-4155. Crespin has already
served the term of imprisonment challenged in No. 19-4155; he is not subject to
any future term of supervision that could be altered if he were to prevail on
appeal; and, given the unique circumstance that the merits issues on appeal in
these two cases are identical, he cannot obtain any relief in No. 19-4155 as to his
current term of imprisonment that he could not otherwise obtain in No. 21-4009.
-4-
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In No. 21-4009, the district court is AFFIRMED. No. 19-4155 is
DISMISSED AS MOOT. Crespin’s motion to take judicial notice in No. 19-
4155, is likewise, DISMISSED AS MOOT.
ENTERED FOR THE COURT
Michael R. Murphy
Circuit Judge
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