United States of America v. Cirilo Viramontes-Ruiz

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
CIRILO VIRAMONTES-RUIZ,
Defendant-Appellant.
No. 17-10305
D.C. No.
3:16-cr-00063-MMD-VPC-1
MEMORANDUM*
Appeal from the United States District Court
for the District of Nevada
Miranda M. Du, Chief District Judge, Presiding
Submission Deferred July 10, 2018
Submitted August 13, 2021**
San Francisco, California
Before: GRABER and TALLMAN, Circuit Judges, and LEMELLE,*** District
Judge.
In 2017, Defendant Cirilo Viramontes-Ruiz appealed his sentence of twelve
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
** The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
*** The Honorable Ivan L.R. Lemelle, United States District Judge for the
Eastern District of Louisiana, sitting by designation.
FILED
AUG 17 2021
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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months’ imprisonment and three years of supervised release for being in the United
States unlawfully, in violation of 8 U.S.C. § 1326(a). Because his appeal of the
Nevada district court’s judgment raised novel questions of Nevada law, we
deferred submission until resolution of United States v. Figueroa-Beltran, 995 F.3d
724 (9th Cir. 2021), which addressed related issues. But intervening years that
were required to resolve Figueroa-Beltran have mooted Defendant’s case, and we
dismiss.
The district court in Nevada apportioned its custodial sentence such that the
first six months ran concurrently with Defendant’s state sentence, while the second
six months ran consecutively. Yet, upon his release from state prison in September
2018, Defendant was not transferred to federal prison but instead was deported to
Mexico. Defendant reentered the United States and, in May 2019, federal
authorities arrested him in Texas. He pleaded guilty, again, to being in the United
States unlawfully following his removal. The district court in the Western District
of Texas then sentenced Defendant to seventy months of imprisonment plus
another three-year term of supervised release. United States v. Viramontes-Ruiz,
No. 3:19-cr-01615-KC (W.D. Tex. Oct. 7, 2019) (judgment). Defendant did not
appeal.

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Before serving that latest sentence imposed by the federal court in Texas,
though, Defendant first had to serve the remaining six months of his federal
sentence from Nevada.1 That makes Defendant’s appeal moot.
First, Defendant completed the custodial portion of his sentence from the
District of Nevada on October 16, 2019. See United States v. Palomba, 182 F.3d
1121, 1123 (9th Cir. 1999) (holding that a defendant "has no standing to challenge
[a] completed sentence" of incarceration). Second, Defendant’s unappealed three-
year term of supervised release from the Western District of Texas is coextensive
with his three-year term from the District of Nevada. See 18 U.S.C. § 3624(e)
("The term of supervised release commences on the day the person is released from
imprisonment and runs concurrently with any Federal, State, or local term of
probation or supervised release or parole for another offense to which the person is
subject or becomes subject during the term of supervised release."). Thus,
Defendant does not present a case in which "[t]he ‘possibility’ that the sentencing
court would use its discretion to reduce a term of supervised release under 18
U.S.C. § 3583(e)(2) [i]s enough to prevent the [appeal] from being moot."
Mujahid v. Daniels, 413 F.3d 991, 995 (9th Cir. 2005) (citation omitted). Even if
Defendant’s term of supervised release from Nevada were eliminated, he still
1 We grant the government’s motion for us to take judicial notice of the
undisputed records from the Federal Bureau of Prisons and for those records to
remain sealed. (Docket Nos. 41 and 42).

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would spend those same three years under supervision by the Western District of
Texas. We thus "cannot grant ‘any effectual relief whatever’ in [his] favor."
Calderon v. Moore, 518 U.S. 149, 150 (1996) (citation omitted).
DISMISSED.

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