15-581 Vale v. United States 

## UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT 

# SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JA NUARY 1, 2007, IS PE RMITTED AND IS GOVERNE D BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT = S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (W ITH THE NOTATION A SUMMARY ORDER @ ). A PARTY CITING TO A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL. At a stated term of the United States Court of Appeals for the Second Circuit, 1 held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of 2 New York, on the 26 th day of September, two thousand sixteen. 3 4 PRESENT: 5 DENNIS JACOBS, 6 DEBRA ANN LIVINGSTON, 7 Circuit Judges, 8 JED S. RAKOFF,  9 District Judge. 10

_____________________________________ 11 12 Jason Vale, 13 14 Petitioner-Appellant , 15 v. 15-581 16 17 United States of America, 18 19 Respondent-Appellee . 20

____________________________________ 21 22 FOR PLAINTIFF-APPELLANT: Jason Vale, pro se, Bellerose Manor, 23 NY. 24 25 FOR RESPONDENT-APPELLEE: David C. James, Charles S. 26 Kleinberg, Assistant United States 27 Attorneys, Brooklyn, NY. 28

 Judge Jed S. Rakoff, of the Unite d States District Court for the Southern District of New York, sitting by designation.2 Appeal from a judgment of the United States Di strict Court for the Eastern District of New 1 York (Gleeson, J .). 2 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND 3 DECREED that the judgment of the district court is AFFIRMED

. 4 Appellant Jason Vale, pro se, a ppeals the denial of his petition for a writ of audita querela 5 and coram nobis. Vale argued that the sent ence imposed for his 2004 criminal contempt 6 conviction was improper because it was based upon the fraud guideline without a jury finding that 7 Vale committed fraud, in violation of the Sixth Amendment, as interpreted in Apprendi v. New 8 Jersey , 530 U.S. 466 (2000). We assume the parties’ familiarity with the underlying facts, the 9 procedural history of the cas e, and the issues on appeal. 10 We review de novo a district court’s de nial of a writ of audita querela. United States v. 11 Richter , 510 F.3d 103, 104 (2d Cir. 2007) (per curiam). We review the denial of a writ of error 12 coram nobis for abuse of discreti on, but conduct a de novo review with resp ect to whether the 13 district court applied th e proper legal standard. United States v. Mandanici , 205 F.3d 519, 524 14 (2d Cir. 2000). 15 Vale’s challenge to his sentence is moot b ecause he has already completed his terms of 16 imprisonment and supervised rele ase, and there are no apparent co ntinuing injuries or collateral 17 consequences stemming from his conviction. See United States v. Mercurris , 192 F.3d 290, 293 18 (2d Cir. 1999). In any event, his Apprendi argument is barred by the law of the case doctrine 19 because the substance of his argument has already b een rejected by this Court and, to the extent it 20 was not, it is barred because the issue could have been decided earlier. See United States v. 21 Williams , 475 F.3d 468, 471 (2d Cir. 2007). Finally, Apprendi affected a district court’s authority 223 to determine sentencing factors that necessari ly increased a defendant’s sentence beyond the 1 statutory maximum; it did not othe rwise affect a district court’s ability to determine relevant 2 conduct pursuant to the guidelines by a preponderance of the evidence. See United States v. 3 Vaughn , 430 F.3d 518, 524-25 (2d Cir. 2005). 4 We have considered all of Vale’s remaining arguments and find them to be without merit. 5 Accordingly, we AFFIRM the judgment of the district court. 6 FOR THE COURT: 7 Catherine O’Hagan Wolfe, Clerk 8