United States of America v. Ardelle Edward Dunlap, Jr.

United States Court of Appeals
For the Eighth Circuit
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No. 12-3006
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United States of America
lllllllllllllllllllll Plaintiff - Appellee
v.
Ardelle Edward Dunlap, Jr.
lllllllllllllllllllll Defendant - Appellant
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Appeal from United States District Court
for the District of Nebraska - Omaha
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Submitted: May 16, 2013
Filed: June 12, 2013
[Published]
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Before SHEPHERD, BEAM, and MELLOY, Circuit Judges.
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PER CURIAM.
The district court sentenced Ardelle Dunlap to one year and one day of1
imprisonment for violating the terms of his supervised release. The district court did
The Honorable Joseph F. Bataillon, United States District Judge for the1
District of Nebraska.

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not impose any additional term of supervised release. Dunlap appealed. Before his
appeal was heard, Dunlap was released from custody and his sentence was fully
discharged. We then ordered the parties to show cause why Dunlap's appeal should
not be dismissed as moot. We now dismiss Dunlap's appeal as moot.2
I.
Dunlap argues his appeal is not moot because the supervised release violation
could enhance his sentence if he is convicted of another crime in the future. Spencer
v. Kemna, 523 U.S. 1 (1998), forecloses Dunlap's collateral consequences argument.
"An incarcerated convict's (or a parolee's) challenge to the validity of his conviction
always satisfies the case-or-controversy requirement . . . . Once the convict's sentence
has expired, however, some concrete and continuing injury other than the now-ended
incarceration or parole—some 'collateral consequence' of the conviction—must exist"
to maintain the appeal. Id. at 7. In Spencer, the district court revoked the defendant's
parole, and the defendant appealed. Id. at 3, 5–6. The defendant was subsequently
released from custody. Id. at 6. The Supreme Court held the possibility the defendant
would face an enhanced sentence for a future crime because of the parole revocation
was not a sufficient collateral consequence to meet Article III's injury-in-fact
requirement. Id. at 15. We are "unable to conclude that the case-or-controversy
requirement is satisfied by general assertions or inferences that in the course of their
activities respondents will be prosecuted for violating valid criminal laws. We
assume that respondents will conduct their activities within the law and so avoid
prosecution and conviction . . . ." O'Shea v. Littleton, 414 U.S. 488, 497 (1974).
Thus, the possibility the supervised release violation might increase Dunlap's
sentence for a future conviction is insufficient to maintain this appeal.
Because we dismiss Dunlap's appeal as moot, we do not address his2
substantive arguments.
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Second, Dunlap argues his appeal is not moot because he will suffer ongoing
social stigma as a result of the violation. Specifically, he argues "unquestionable
stigma" is attached to the district court's finding that Dunlap violated the terms of his
supervised release because "[t]he supervised-release petition accused Mr. Dunlap of
an act of domestic violence upon a pregnant woman and he denied it." Dunlap cites
no authority for the proposition that a defendant's protestation of innocence in an
appeal of a supervised release violation creates a sufficient controversy where no
other collateral consequences are at stake and the case is otherwise moot. Lacking3
any authority in support of his argument, Dunlap's denial of the violation is
insufficient to maintain this appeal.
Finally, Dunlap argues that even if his appeal is otherwise moot, his appeal
falls within the exception to mootness for cases "capable of repetition yet evading
review." This exception applies "where the following two circumstances [are]
simultaneously present: (1) the challenged action [is] in its duration too short to be
fully litigated prior to cessation or expiration, and (2) there [is] a reasonable
expectation that the same complaining party [will] be subject to the same action
again." Spencer, 523 U.S. at 17 (alterations in original) (citations and internal
quotation marks omitted). The Spencer petitioner similarly argued his case was not
moot because it was "capable of repetition, yet evading review." Id. (internal
quotation marks omitted). The Supreme Court held the petitioner "has not shown
(and we doubt that he could) that the time between parole revocation and expiration
of sentence is always so short as to evade review. Nor has he demonstrated a
reasonable likelihood that he will once again be paroled and have that parole
revoked." Id. at 18. The same reasoning applies here. Dunlap has not shown all
appeals of supervised release violations are "so short as to evade review," and we will
not assume Dunlap will in future be convicted of a crime, sentenced to supervised
We offer no opinion as to whether social stigma might be sufficient to sustain3
an appeal outside the present case.
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release, charged with violating supervised release, appeal that violation, and again
find his appeal moot. See O'Shea, 414 U.S. at 497 ("[A]ttempting to anticipate
whether and when these respondents will be charged with [a] crime . . . takes us into
the area of speculation and conjecture."). Thus, we reject Dunlap's final argument.4
II.
We dismiss Dunlap's appeal as moot.
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United States v. Melton, 666 F.3d 513 (8th Cir. 2012), and United States v.4
Wilson, 709 F.3d 1238 (8th Cir. 2013), cited by Dunlap, are distinguishable. Unlike
Dunlap, the Melton defendant was still on supervised release at the time of his appeal.
Melton, 666 F.3d at 515 n.3. Unlike Dunlap, the Wilson defendant appealed the
imposition of a no-contact order. Wilson, 709 F.3d at 1239.
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