United States of America v. Yarmell Austin

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 23-2196
U NITED S TATES OF A MERICA,
Plaintiff-Appellee,
v.
Y ARMELL A USTIN ,
Defendant-Appellant.
____________________
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 1:16-cr-00359-1 — Mary M. Rowland, Judge.
____________________
S UBMITTED F EBRUARY 5, 2024 — DECIDED F EBRUARY 22, 2024
____________________
Before R OVNER , BRENNAN , and K IRSCH , Circuit Judges.
R OVNER , Circuit Judge. Yarmell Austin completed his 70-
month sentence of imprisonment for being a felon in posses-
sion of a firearm in violation of 18 U.S.C. §922(g)(1), on Au-
gust 11, 2020, and began a three-year term of supervised re-
lease. In a February 3, 2023 special report, the probation office
alleged that Austin violated his supervised release when he
was arrested for burglary and possession of a controlled sub-
stance. The report also alleged that since December 2021,

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2 No. 23-2196
Austin had also violated his conditions of supervised release
by failing to work, seek work, or participate in a job training
program. The probation office filed two more supplemental
reports: one on April 18, 2023, documenting that Austin fur-
ther violated his supervised release by testing positive for fen-
tanyl, norfentanyl, and morphine on February 24, and another
on May 30, 2023, noting that on May 18, he once again tested
positive for amphetamines, fentanyl, and opiates. The proba-
tion office recommended that Austin’s term of supervised re-
lease be revoked, and that Austin be sentenced to twenty-
three months in prison with no supervised release to follow.
At his hearing on May 31, 2023, the Government agreed to
dismiss the more serious violations of burglary and posses-
sion if Austin admitted to testing positive for illegal drug use,
which he eventually did. The district court determined that
Austin’s guideline range of imprisonment for his supervised
release violation would be eight to fourteen months. Without
hearing from the parties, the court then announced a sentence
of eight months in prison.
Realizing that it had not heard the positions of the parties,
the court immediately rectified the error by inviting both par-
ties to argue about the appropriate sentence. The Government
argued for a fourteen-month sentence based on the two failed
drug tests and the pending state charges. The probation office
also weighed in, noting that Austin was reported to be expe-
riencing heroin withdrawal symptoms while in jail after his
arrest for burglary. Austin argued that he had completed two
and a half of the three years of supervised release without any
positive drug tests, and that he planned on contesting the
state charges. Austin thus asked the court to impose a prison

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No. 23-2196 3
sentence of two and a half months—the amount of time he
had left in his term of supervised release.
After hearing from the parties, the district court judge re-
marked that Austin did well for the first two years of his su-
pervised release, but expressed concern about his drug addic-
tion and that he was “headed in the wrong direction.” R. 134
at 13. Given Austin’s violations, the court again determined
that an eight-month prison sentence, with no further super-
vised release, was appropriate.
Austin filed an appeal on August 25, 2023, contending that
the district court imposed a substantively unreasonable sen-
tence of eight months’ incarceration for violating his super-
vised release, and erred procedurally while doing so.
Austin, however, was released from custody on January 9,
2024—after the filing of the briefs, but before oral argument
in this court. We therefore asked for supplemental filings
from the parties addressing whether, “if he is released as
scheduled, he will remain on supervised release or face any
other collateral consequences from the judgment being chal-
lenged on appeal,” and what would be the “proper disposi-
tion of the appeal in light of this information.” App. R. 19.
We asked for this information because the Supreme Court
has held that where a defendant challenges the revocation of
parole, “[o]nce the convict’s sentence has expired, … some
concrete and continuing injury other than the now-ended in-
carceration or parole—some ‘collateral consequence’ of the
conviction—must exist if the suit is to be maintained.” Spencer
v. Kemna, 523 U.S. 1, 7 (1998) (quoting Carafas v. LaVallee, 391
U.S. 234, 237–38 (1968)). In Spencer, the Supreme Court found
there were no collateral consequences where a defendant

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4 No. 23-2196
challenged a lower court’s decision to revoke his parole, spe-
cifically rejecting the argument that his parole revocation
might be used against him in a future parole proceeding or
sentencing. 523 U.S. at 13–15. Although Spencer addressed
revocation of parole, and this case concerns revocation of su-
pervised release, in a recent unpublished order, we noted that
“[s]everal courts of appeals have held that the two situations
should be treated identically, and we have not found any con-
trary decisions.” United States v. Madrigal, No. 22-2140, 2023
WL 6890162, at *1 (7th Cir. Oct. 19, 2023) (collecting cases from
the First, Second, Fourth, Fifth, and Tenth Circuits). We now
conclude likewise in a published opinion.
Austin’s supplemental memorandum concedes that “he
was not sentenced to any further term of supervised release”
and that he was “unaware of any other collateral federal con-
sequences from the judgment being challenged on appeal.”
App. R. 20, Supp. Memo. 1. The closest he comes to asserting
collateral consequences is that he has a “pending Cook
County [Illinois] burglary case” and that “[c]onceivably the
length and propriety of his sentence for violating his federal
supervised release will be factored into what, if any, sentence
he receives.” Id. That, however, is not a collateral consequence
under Spencer, where the Court specifically “rejected as col-
lateral consequences sufficient to keep the controversy alive
the possibility that the parole revocations would affect … the
sentence imposed … in a future criminal proceeding.” Spen-
cer, 523 U.S. at 13 (cleaned up). The Court concluded that
these “nonstatutory consequences [are] dependent upon the
discretionary decisions made by … a sentencing judge, which
are not governed by the mere presence or absence of a rec-
orded violation of parole, but can take into consideration, and
are more directly influenced by, the underlying conduct that

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No. 23-2196 5
formed the basis for the parole violation.” Id. (cleaned up).
Moreover, the fact that a parole revocation might be used to
increase a sentence in a future proceeding is insufficient to al-
lege injury as “it [is] contingent upon [the defendant] violat-
ing the law, getting caught, and being convicted,” and the de-
fendant himself is “’able—and indeed required by law—to
prevent such a possibility from occurring.’” Id. at 15 (quoting
Lane v. Williams, 455 U.S. 624, 633 n.13 (1982)); see also Diaz v.
Duckworth, 143 F.3d 345, 346 (7th Cir. 1998) (“[c]onsequences
that are within the power of the defendant to avoid—such as
a sentencing enhancement, which presupposes his deciding
to commit another crime—are excluded.”). Once Austin’s
sentence for his parole violation expired, he no longer had any
“injury traceable to the defendant and likely to be redressed
by a favorable judicial decision.” Spencer, 523 U.S. at 7 (quoting
Lewis v. Cont’l Bank Corp., 494 U.S. 472, 477 (1990)).
Because the defendant has been released from custody
without further supervision and faces no collateral conse-
quences of the revocation of supervised release, this appeal is
DISMISSED as moot.

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