F I L E D

United States Court of Appeals

Tenth Circuit

August 26, 2005

PATRICK FISHER

Clerk

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

ARLETTE Y. HERNANDEZ-BAIDE,

Defendant-Appellant.

No. 04-3101

(D. Kan.)

(D.Ct. No. 03-CR-10072-MLB)

ORDER ON REMAND FROM THE SUPREME COURT

OF THE UNITED STATES

Before TACHA, Chief Circuit Judge, and PORFILIO and BRORBY, Senior

Circuit Judges.

This case is before us after being vacated and remanded by the United

States Supreme Court for further consideration in light of United States v. Booker,

543 U.S. ___, 125 S. Ct. 738 (2005). See Hernandez-Baide v. United States, ___

U.S. ____, 125 S. Ct. 1993 (2005). Ms. Hernandez-Baide pled guilty to one count

of illegal reentry of a deported alien previously convicted of an aggravated

felony, in violation of 8 U.S.C. § 1326(a) and (b)(2). See United States v.

Hernandez-Baide, 392 F.3d 1153, 1154 (10th Cir. 2004). On appeal, we affirmed

the district court’s denial of a downward departure under the lesser harms
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provision contained in United States Sentencing Commission, Guidelines Manual

(U.S.S.G.) § 5K2.11. Id. at 1155, 1158-59. While Ms. Hernandez-Baide’s case

was pending before this court on the Supreme Court’s remand, the government

filed a motion to dismiss her appeal as moot, to which Ms. Hernandez-Baide

objected. After consideration of the parties’ arguments, we grant the

government’s motion, dismiss Ms. Hernandez-Baide’s appeal on remand as moot,

and reinstate our prior decision affirming her conviction and sentence.

The circumstances surrounding Ms. Hernandez-Baide’s underlying guilty

plea, conviction, and sentence are more fully set forth in our prior decision. Id. at

1153-59. On January 21, 2005, following our disposition of her appeal, Ms.

Hernandez-Baide satisfied her prison sentence and was released from

imprisonment, and on February 9, 2005, the federal government deported Ms.

Hernandez-Baide from the United States to Honduras.

On January 12, 2005, during the pendency of Ms. Hernandez-Baide’s

appeal to the Supreme Court, it decided United States v. Booker, in which it

determined the Sentencing Guidelines should be applied in an advisory rather than

a mandatory capacity. 543 U.S. at ___, 125 S. Ct. at 764-65. While Ms.

Hernandez-Baide did not raise an Apprendi-, Blakely-, or Booker-related issue on
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direct appeal, she apparently raised such an issue in her appeal to the Supreme

Court, and on May 2, 2005, it vacated our previous decision and remanded Ms.

Hernandez-Baide’s appeal to us for consideration in light of Booker. See

Hernandez-Baide v. United States, ___ U.S. at ___, 125 S. Ct. at 1993. This court

then ordered the parties to file briefs, in conjunction with Booker, regarding the

mandatory sentence imposed by the district court. We now address the issues

raised by the government in its intervening motion to dismiss Ms. HernandezBaide’s appeal as moot.

While the government concedes Booker error occurred in the mandatory

sentencing of Ms. Hernandez-Baide, it suggests her appeal is moot because she: 

1) satisfied her term of imprisonment; 2) has been deported to her native country

of Honduras; 3) is barred for life from reapplying for admission to the United

States, based on her prior California conviction for possession of cocaine base

with intent to distribute; and thereby 4) is unavailable for resentencing with

respect to her three-year supervised release and not subject to any collateral

consequences stemming from the error alleged. In support, it argues that under

Spencer v. Kemna, 523 U.S. 1 (1998), and United States v. Meyers, 200 F.3d 715

(10th Cir. 2000), this court lacks jurisdiction to remand for the purpose of

resentencing Ms. Hernandez-Baide, as she is permanently banned from reentering
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this country under 8 U.S.C. § 1182(a)(2)(A)(i)(II). Ms. Hernandez-Baide counters

that her case is not moot so long as she is under a term of supervised release and

that the district court could, under a Booker advisory sentencing scheme, impose a

lesser or no term of supervised release. 

In Meyers, we explained:

When an incarcerated criminal defendant appeals his

conviction, the ongoing incarceration constitutes an injury from which

the defendant seeks relief in satisfaction of Article III. ... If,

however, that same defendant completes his sentence prior to the

appellate court decision, the court must determine whether sufficient

collateral consequences flow from the underlying judgment and the

completed sentence to save the appeal from mootness.

200 F.3d at 718 (relying on Spencer, 523 U.S. at 7-8). While we acknowledged

past Supreme Court precedent established “a presumption of sufficient collateral

consequences when a defendant who has already served his sentence appeals the

propriety of his initial conviction,” we also noted that in Spencer “the Court

declined to extend this presumption of collateral consequences to challenges of

parole termination.” Id. at 718. We then declined to extend the presumption of

collateral consequences to supervised release, stating, “when a defendant appeals

the revocation of his supervised release and resulting imprisonment and has

completed that term of imprisonment, the potential impact of the revocation order

and sentence on possible later sentencing proceedings does not constitute a
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sufficient collateral consequence to defeat mootness.” Id. at 722. We further

recognized that under Spencer collateral consequences cannot be based on the

speculation that an individual will receive an enhanced sentence in future

sentencing proceedings in connection with a crime he has not yet committed. Id.

at 719 (relying on Spencer, 523 U.S. at 13-15). Finally, we determined the

appellant bears the burden of demonstrating the existence of sufficient collateral

consequences to save the action from mootness. Id. at 722.

Drawing on the principles explained in Spencer and Meyers, we find the

collateral consequence suggested by Ms. Hernandez-Baide concerning

resentencing for a lesser or no term of supervised release is more than speculative. 

To begin, Ms. Hernandez-Baide is no longer within the jurisdiction of any court of

the United States, including the district court, for the purpose of resentencing. 

The situation is compounded by the fact that her return to this country is

prohibited, given her prior drug conviction bars her for life from reapplying for

admission to the United States. As the Second Circuit pointed out in a similar

situation, a defendant’s prior drug trafficking conviction rendering entry into the

United States inadmissible would result in “only a quixotic chance of legally

returning to the United States.” See United States v. Mercurris, 192 F.3d 290, 294

(2d Cir. 1999) (determining that inadmissible reentry issue made possibility that
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defendant’s aggravated felon status “could make a difference to him under the

immigration statutes ... too speculative to create an Article III case or

controversy”). Even if Ms. Hernandez-Baide did enter the United States and was

prosecuted for committing another crime, we find it highly unlikely a reduction in

her supervised release would have the collateral consequence of affecting any

future sentence. Thus, we decline to find collateral consequences exist based on

the mere speculation Ms. Hernandez-Baide may some day return to the United

States (albeit illegally) and receive an enhanced sentence in connection with a

crime she has not yet committed. For these reasons, we find Ms. Hernandez-Baide

has not carried her burden of showing the existence of sufficient collateral

consequences to save the action from mootness.

Accordingly, we GRANT the government’s motion, DISMISS Ms.

Hernandez-Baide’s appeal on remand as moot, and REINSTATE our prior

decision affirming her conviction and sentence.

Entered by the Court:

WADE BRORBY

United States Circuit Judge