United States of America v. Shelton Demond Ketter

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 17-4267
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
SHELTON DEMOND KETTER,
Defendant - Appellant.
Appeal from the United States District Court for the District of South Carolina, at
Florence. Terry L. Wooten, Chief District Judge. (4:09-cr-00851-TLW-1)
Argued: September 27, 2018 Decided: November 8, 2018
Before GREGORY, Chief Judge, and MOTZ, Circuit Judge, and William L. OSTEEN,
Jr., United States District Judge for the Middle District of North Carolina, sitting by
designation.
Affirmed by published opinion. Judge Motz wrote the opinion, in which Chief Judge
Gregory and Judge Osteen joined.
ARGUED: Kimberly Harvey Albro, OFFICE OF THE FEDERAL PUBLIC
DEFENDER, Columbia, South Carolina, for Appellant. Carrie Fisher Sherard, OFFICE
OF THE UNITED STATES ATTORNEY, Greenville, South Carolina, for Appellee.
ON BRIEF: Beth Drake, United States Attorney, OFFICE OF THE UNITED STATES
ATTORNEY, Columbia, South Carolina, for Appellee.

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DIANA GRIBBON MOTZ, Circuit Judge:
After a jury in 2010 found Shelton Demond Ketter guilty of being a felon in
possession of a firearm, the district court applied the residual clause of the Armed Career
Criminal Act (“ACCA”), 18 U.S.C. § 924(e)(2)(B), to sentence him to 192 months’
imprisonment and five years of supervised release. Following Ketter’s successful
challenge to his sentence as contrary to Johnson v. United States, 135 S. Ct. 2551 (2015),
and Welch v. United States, 136 S. Ct. 1257 (2016), the court resentenced him to
imprisonment for time served, followed by two years of supervised release to expire in
April 2019. Ketter appeals, challenging his sentence as procedurally and substantively
unreasonable. After rejecting the Government’s contention that the case is moot, we
affirm the judgment of the district court.
I.
When the district court originally sentenced Ketter, he had two prior convictions
for South Carolina second-degree burglary. Pursuant to then-controlling law, these prior
crimes provided the basis for finding him an “armed career criminal” under the ACCA’s
residual clause. This subjected him to a mandatory minimum sentence of fifteen years’
imprisonment with a Guidelines range of three to five years of supervised release.
U.S.S.G. § 5D1.2(a)(1) (Nov. 2009).
After holding the ACCA’s residual clause unconstitutional in Johnson, the
Supreme Court held in Welch that Johnson announced a substantive rule that applied
retroactively to cases on collateral review. Welch, 136 S. Ct. at 1268. In response to

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these holdings, Ketter filed an amended petition to correct his sentence under 28 U.S.C.
§ 2255. He maintained, and the Government agreed, that Johnson and Welch established
that he no longer qualified as an armed career criminal.
On May 16, 2016, the parties jointly moved for expedited resentencing. Six
months later, Ketter moved for immediate resentencing. Unclear as to whether Mathis v.
United States, 136 S. Ct. 2243 (2016), applied retroactively on collateral review, the
district court ordered additional briefing on the issue. The parties agreed that it did. The
court then set the case for resentencing but discovered that a pending Fourth Circuit case,
United States v. Hall, 684 F. App’x 333, 335–36 (4th Cir. 2017), presented the precise
question regarding the applicability of Mathis. The Fourth Circuit issued its opinion in
Hall on April 7, 2017. Two days later, the district court granted the motion and
resentenced Ketter.
At this point, Ketter had served approximately 90 months in prison. The new
presentence investigation report, to which neither party objected, recommended a
Guidelines range of 27 to 33 months of imprisonment and 1 to 3 years of supervised
release. The district court, stating it had “considered the 3553(a) factors,” including
offense conduct and criminal history, resentenced Ketter to time served (90 months) with
two years of supervised release. The court explained that Ketter had served “some 53
months above [the] guideline range,” and found this “the basis . . . to have him serve two
years of supervised release.”
Ketter’s counsel objected to the sentence, contending that the time-served sentence
amounted to an improper upward variance and was substantively unreasonable. The

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Government countered that a time-served sentence “serve[d] the exact same purpose as
the guideline sentence.” The district court adhered to its sentence. In its Statement of
Reasons, the court checked a box indicating that the sentence was “within the guideline
range,” and did not check any box signaling a departure or variance.
This appeal followed.
II.
Although neither the Government nor Ketter raised the question, we directed the
parties to file supplemental briefs addressing possible mootness, given that Ketter has
completed his term of imprisonment. Because mootness is jurisdictional, we can and
must consider it even if neither party has raised it. North Carolina v. Rice, 404 U.S. 244,
246 (1971).
“A case becomes moot — and therefore no longer a ‘Case’ or ‘Controversy’ for
purposes of Article III — when the issues presented are no longer ‘live’ or the parties
lack a legally cognizable interest in the outcome.” Already, LLC v. Nike, Inc., 568 U.S.
85, 91 (2013) (internal quotation marks omitted). “The mootness doctrine, however,
constitutes a relatively weak constraint on federal judicial power . . . .” United States v.
Springer, 715 F.3d 535, 540 (4th Cir. 2013). “A case becomes moot only when it is
impossible for a court to grant any effectual relief whatever to the prevailing party.”
Knox v. Serv. Emps. Int’l Union, Local 1000, 567 U.S. 298, 307 (2012) (emphasis added)
(internal quotation marks omitted).

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The Government argues that the mootness analysis announced in Spencer v.
Kemna, 523 U.S. 1, 7 (1998), which we applied in United States v. Hardy, 545 F.3d 280
(4th Cir. 2008), renders Ketter’s appeal moot. In Spencer, the Supreme Court held that a
defendant’s challenge to incarceration for a parole revocation became moot as soon as he
served his revoked term of imprisonment. The Court explained that to avoid mootness,
“some concrete and continuing injury other than the now-ended incarceration . . . must
exist if the suit is to be maintained.” Spencer, 523 U.S. at 7. Similarly, in Hardy, 545
F.3d at 232, we held an appeal moot when appellant had already served his term of
imprisonment and had “no supervised release to follow.” Relying on Spencer, Hardy,
and several unreported opinions from this court, see, e.g., United States v. Jones, 639 F.
App’x. 184 (4th Cir. 2016), the Government argues that Ketter’s claim of error became
moot as soon as he completed his term of incarceration, notwithstanding that he continues
to serve his term of supervised release.
Ketter contends that we cannot treat the custodial and supervised release portions
of his sentence separately. He maintains that such a sentence is unitary. Accordingly, he
argues that he can mount a challenge to his sentence even after incarceration has ceased,
because he continues to serve a term of supervised release.
We agree with Ketter that he received a unitary sentence and that a challenge to
that sentence presents a live controversy, even though he has served the custodial portion
of that sentence. Treating custodial and supervised release terms as components of one
unified sentence appropriately recognizes the interdependent relationship between
incarceration and supervised release. “[T]he term of supervised release, the revocation of

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that term, and any additional term of imprisonment imposed for violating the terms of the
supervised release are all part of the original sentence.” United States v. Evans, 159 F.3d
908, 913 (4th Cir. 1998); see also United States v. Woodrup, 86 F.3d 359, 361 (4th Cir.
1996) (describing supervised release as “an authorized part of the original sentence”).
Incarceration and supervised release constitute complementary tools employed by
judges when crafting an appropriate sentence, and judges consider the same factors when
setting terms for each. 18 U.S.C. § 3583(c). Because of the reciprocal relationship
between a prison sentence and a term of supervised release, even when a prison term has
ceased, a defendant serving a term of supervised release has a “legally cognizable interest
in the outcome” of a challenge to his sentence. Already, LLC, 568 U.S. at 91 (internal
quotation marks omitted). Although the underlying prison sentence has been served, a
case is not moot when an associated term of supervised release is ongoing, because on
remand a district court could grant relief to the prevailing party in the form of a shorter
period of supervised release.
Neither Spencer nor Hardy support a contrary holding. Neither case suggests that
an appeal by a defendant still serving his supervised release sentence is moot because he
is no longer imprisoned. Spencer and Hardy simply hold that a challenge to a sentence is
moot when the entire sentence (including any supervised release or parole) has been
served.
Eight of our sister circuits have applied the unitary-sentence approach that we
adopt today. See United States v. Hulen, 879 F.3d 1015, 1018 (9th Cir. 2018); United
States v. Albaadani, 863 F.3d 496, 502–03 (6th Cir. 2017); United States v. Montoya, 861

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F.3d 600, 603 n.2 (5th Cir. 2017); United States v. Carter, 860 F.3d 39, 43 (1st Cir.
2017); In re Sealed Case, 809 F.3d 672, 674–75 (D.C. Cir. 2016); United States v. Vera-
Flores, 496 F.3d 1177, 1180 (10th Cir. 2007); United States v. Blackburn, 461 F.3d 259,
262 (2d Cir. 2006); United States v. Larson, 417 F.3d 741, 747 (7th Cir. 2005).1 These
courts have explained that “[a]n appeal of a sentence is not moot where success on the
appeal could alter the length or conditions of the supervised release portion of the
defendant’s sentence.” Hulen, 879 F.3d at 1018. We agree.
In this case, the district court sentenced Ketter to two years of supervised release
within the guideline range of one to three years. See U.S.S.G. § 5D1.2(a)(2). Thus, “the
district court . . . retain[s] the discretion to reduce the sentence of supervised release on
remand,” and so an appeal of the sentence is not moot. Albaadani, 863 F.3d at 502
(internal quotation marks omitted).
1 A Sixth Circuit panel in an unpublished opinion recently rejected a challenge to a
time-served resentencing under a divisible-sentence theory. See United States v. Perotti,
702 F. App’x. 322 (6th Cir. 2017), cert. denied, 138 S. Ct. 1280 (2018). That opinion,
however, contradicts Sixth Circuit law, see Albaadani, 863 F.3d at 502–03, and was
recently criticized in another published Sixth Circuit decision, United States v. Nichols,
897 F.3d 729, 736 (6th Cir. 2018). In fact, only one circuit that has faced this precise
issue has departed from the unified-sentence approach, and even that departure was
equivocal. The Third Circuit adopted a divisible-sentence approach in theory, but in
practice found the mere “possibility of a credit . . . against a term of supervised release”
to constitute a “collateral consequence[]” that avoided mootness. See United States v.
Jackson, 523 F.3d 234, 241 (3d Cir. 2008).

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III.
Having concluded that Ketter’s appeal presents a live controversy, we turn to the
merits of that appeal.
Ketter challenges his time-served prison sentence as both procedurally and
substantively unreasonable. He acknowledges that a defendant has no entitlement to
credit his overserved custodial time against his term of supervised release. See United
States v. Johnson, 529 U.S. 53, 59 (2008). But he asks that we remand his case so that
the district court can explain its deviation from his Guidelines range of 27 to 33 months
and imposition of a sentence to the 90 months of “time served.” According to Ketter,
only this will allow the district court, if it chooses, to “provide credit for time overserved
by providing a reduction in the term of supervised release.”
In reviewing a sentence for reasonableness, this court applies a “deferential abuse-
of-discretion standard.” United States v. Carter, 564 F.3d 325, 328 (4th Cir. 2009)
(quoting Gall v. United States, 552 U.S. 38, 41 (2007)). The government does not argue
for a different standard at resentencing. Under this standard, as the Government
conceded at oral argument, the district court’s imposition of a time-served sentence
amounted to an unexplained variance from the Guidelines and so constituted procedural
error. See Gall, 552 U.S. at 51 (noting that a sentencing court must explain “any
deviation from the Guidelines range”).
The record, however, conclusively demonstrates that any error was harmless. This
is so because, although the court did not explain its variance, it expressly recognized that
Ketter had “overserved his time.” And in light of that “overserved” time, the court

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significantly reduced the period of Ketter’s supervised release from five years to two
years — one year below Ketter’s new statutory maximum, 18 U.S.C. § 3583(b)(2), and
within the range counseled by the Guidelines, U.S.S.G. § 5D1.2(a)(2). In doing so, the
court explained that the fact that Ketter had served a prison term “some 53 months above
[the] guideline range” provided “the basis” for this reduced term of supervised release.
Thus, the district court fully and expressly accounted for Ketter’s overserved time in
determining his prospective sentence of supervised release. Further, any error did not
have the practical effect of prolonging Ketter’s incarceration by even one day.
Accordingly, any error did not “affect [Ketter’s] substantial rights” and so was
harmless. Fed. R. Crim. P. 52(a); see, e.g., United States v. Nyman, 649 F.2d 208, 211–
12 (4th Cir. 1980) (applying Rule 52(a) harmless-error standard). The harmless error
doctrine “promotes public respect for the criminal process by focusing on the underlying
fairness” of a proceeding. Delaware v. Van Arsdall, 475 U.S. 673, 681 (1986). This
prudential analysis considers whether an error so affected the proceedings as to unfairly
influence the outcome. The inquiry diverges from the jurisdictional question of
mootness, which (as we have explained) asks only whether the possibility of relief is so
remote and speculative as to obviate any case or controversy.
In sum, although Ketter’s appeal is not moot because the challenge to his prison
term could alter the length of his ongoing supervised release term, any error was harmless

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because it did not in fact affect his substantial rights.2 Thus, Ketter’s appeal fails, like
those of other litigants in his position. See, e.g., In re Sealed Case, 809 F.3d at 675–76;
see also Blackburn, 461 F.3d at 268 (Sotomayor, J., dissenting) (“Given the majority’s
acknowledgment that the district court could resentence Blackburn to a reduced
supervised-release term, its ultimate conclusion should be not that the case is moot, but
that any error . . . was harmless.”).3
IV.
For the foregoing reasons, the judgment of the district court is
AFFIRMED.
2 This is not to say that a sentence of time served can never affect substantial
rights. Cf. Nichols, 897 F.3d at 734 (finding reversible error where unreasonable time-
served sentence, in combination with other sentences to be served consecutively,
prolonged incarceration).
3 Although then-Judge Sotomayor would have reviewed the defendant’s sentence
for harmless error, she would ultimately not have found the error harmless because the
record did not “reflect the district court’s unambiguous intent to impose” the same term of
supervised release “notwithstanding a potential error in calculating [the] Guidelines
range.” Blackburn, 461 F.3d at 270. Based on the unambiguous record in this case, we
reach the opposite conclusion.

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