[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

________________________

No. 15-15094

________________________

D.C. Docket No. 1:15-cr-00180-WSD-GGB-1

UNITED STATES OF AMERICA, 

 Plaintiff - Appellee,

versus

MANUEL TIRADO-YERENA, 

a.k.a. Manuel Yerena, 

a.k.a. Manuel Yerena-Tirado, 

 Defendant - Appellant.

________________________

Appeal from the United States District Court

for the Northern District of Georgia

________________________

(May 22, 2017)

Before WILSON and BLACK, Circuit Judges, and RESTANI,* Judge.

BLACK, Circuit Judge: 

 * Honorable Jane A. Restani, Judge for the United States Court of International Trade, 

sitting by designation.

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Manuel Tirado-Yerena (Tirado) appeals his 25-month sentence for illegal 

reentry after deportation, in violation of 8 U.S.C. § 1326(a) and (b)(2). Tirado 

asserts the district court erred in enhancing his sentence eight levels under 

U.S.S.G. § 2L1.2(b)(1)(C) (2014).1

 This guideline increases a defendant’s offense 

level by eight points “[i]f the defendant previously was deported, or unlawfully 

remained in the United States, after . . . a conviction for an aggravated felony.” 

Tirado contends his two prior Georgia convictions for entering an automobile, 

O.C.G.A. § 16-8-18, do not qualify as aggravated felonies under 8 U.S.C. 

§ 1101(a)(43)(G). After review, we conclude that we need not determine whether 

Tirado’s prior convictions qualify as aggravated felonies because any potential 

error in the calculation of Tirado’s Guidelines range was harmless. 

I. BACKGROUND

Tirado pled guilty to illegal reentry after deportation, in violation of 8 U.S.C. 

§ 1326(a) and (b)(2). According to the presentence investigation report (PSI), after 

he was arrested for theft by taking, Tirado was identified as an illegal alien who 

was previously deported in 2011 after sustaining a conviction for entering an 

automobile with intent to commit a theft.

In preparing the PSI, the probation officer calculated a base offense level of 

8, pursuant to § 2L1.2. The probation officer then applied an 8-level enhancement 

 1

 Tirado was sentenced pursuant to the November 1, 2014 Guidelines Manual. All 

citations to the Guidelines are to the 2014 Sentencing Guidelines. 

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under §2L1.2(b)(1)(C) because Tirado was previously deported subsequent to an 

aggravated felony conviction. The probation officer identified two prior 

convictions for entering an automobile with intent to commit a theft as qualifying 

aggravated felonies. Tirado received a 3-level reduction for acceptance of 

responsibility under § 3E1.1, bringing his total offense level to 13. Tirado had a 

criminal history category of IV, and, with a total offense level of 13, his resulting 

Guidelines range was 24 to 30 months’ imprisonment. The statutory maximum 

sentence was 20 years.

The PSI summarized Tirado’s qualifying convictions for “entering an 

automobile.” In 2007, Tirado pled guilty to the Georgia offense of entering an 

automobile. The indictment charged that Tirado entered an automobile with intent 

to commit a theft. Four years later, in 2011, Tirado pled guilty to another count of 

the same offense. That indictment charged that Tirado unlawfully entered a truck 

with the intent to commit a theft.

In his amended sentencing memorandum, Tirado argued his prior 

convictions for entering an automobile did not qualify as aggravated felonies, and 

thus the 8-level enhancement under § 2L1.2(b)(1)(C) was inappropriate. Instead, 

Tirado argued his prior convictions qualified him only for a 4-level enhancement 

under § 2L1.2(b)(1)(D), which provides an enhancement for “a conviction for any 

other felony.” Applying a 4-level enhancement under § 2L1.2(b)(1)(D) to the base 

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offense level of 8 would result in an adjusted offense level of 12. Under § 3E1.1, 

Mr. Tirado would then receive only a 2-level adjustment for his acceptance of 

responsibility, yielding a total offense level of 10. With a criminal history category 

of IV, his Guidelines range would be 15 to 21 months’ imprisonment. The 

Government responded that both convictions qualified as aggravated felonies.

Prior to sentencing, the court issued an order finding Tirado’s offenses 

qualified as aggravated felonies, and that he was subject to the 8-level 

enhancement under § 2L1.2(b)(1)(C). Tirado filed a motion requesting the court 

reconsider its order overruling his objection to the enhancement, and requested the 

court consider his argument at sentencing.

At sentencing, the court agreed to reconsider its order. After hearing 

argument from both sides, the court overruled Tirado’s objection, reaching the 

same conclusion as in its prior order and imposing the 8-point enhancement. In its 

reasoning, the district court noted: 

Whether or not this is a four-point or eight-point adjustment, I am 

always able to go back and look at the underlying offenses and the 

defendant’s conduct and apply the 3553 factors, whether or not his 

conduct in the past, and it’s not good in this case, warrants we see 

what it is when he came back to the country illegal, he did come back 

illegally, he was here, and that is always a matter since the guidelines 

are not binding and I can take that into consideration.

I think the guidelines just give you a way and a process by which the 

commission wants me to do which is to evaluate all of the facts and 

circumstances and the conduct of the defendant in reaching a 

reasonable sentence. 

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The court adopted the Guidelines range in the PSI, finding Tirado’s total 

offense level was 13 and his criminal history category was IV, resulting in a 

Guidelines range of 24 to 30 months’ imprisonment. The court then listened to 

arguments for extenuation and mitigation. Tirado argued in mitigation that certain 

of the § 3553(a) factors, including reducing unwarranted sentencing disparities and 

the history and characteristics of the defendant, specifically the unsupportive 

environment and abject poverty in which he was raised, supported a belowGuidelines sentence. In turn, the Government argued for a sentence at the middle 

of Tirado’s advisory Guidelines range. The Government reasoned that Tirado’s 

history and characteristics, his need for deterrence, and the need to promote respect 

for the law supported a mid-Guidelines range sentence, given that this was the 

seventh occasion on which Tirado was found unlawfully in the United States.

In imposing the sentence, the district court detailed its reasoning: 

[T]here are a number of things I have already pointed out about 

your conduct which makes you very different than most people that 

have appeared before me on this kind of violation, and I very seldom 

have people who have the number of repeated re-entries after being 

removed by authorities as you have. I have fewer people that, when 

they re-entered the United States, that engage in conduct that you’ve 

engaged in which is not lawful. There is a consistent theme about 

your conduct once you are here and when you decide to return here, 

and that consistent theme is that you cannot comply with the authority 

of either our states, in this case the state of Georgia, or Federal 

authorities. We know that you were told repeatedly that you could not 

come back into the United States. . . . 

What is also interesting is that when you committed offenses 

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here, and you knew that you were under the supervision of the 

authorities of those courts, you were not able to comply with those 

authorities either. So the theme is that not only—and the pattern that 

you have exhibited really goes well beyond what has been 

acknowledged and admitted by your counsel, which is that you knew 

that you couldn’t come back and you did, you were told repeatedly as 

the Government escalated its response to you, allowed you first to be 

returned voluntarily, and then finally taking more formal action 

against you, each time you knew that when you were returned back to 

your country that you were not allowed to come. And then finally, 

after the number of times that they tried to get the message across to 

you, after you having not been able to even comply with the message 

that if you are here you have to live lawfully, finally you are 

prosecuted. . . . 

[T]he criteria that are in 3553, the responsibility of a sentence is 

to promote respect for the law. You have proven that respect for the 

law needs to be promoted within you because you have been unable to 

comply and conform your conduct to the law as it relates to entering 

the country and living lawfully once you are here, and even then, 

when prosecuted by state authorities, abiding by the rules and 

regulation of probation which you have been unable to do. And I 

think at least on two occasions your probation was revoked.

Adequate deterrence. There are two kinds of deterrence. I am 

convinced to a certainty that based upon your pattern and really fairly 

weak reasons for you to come into the United States after having been 

repeatedly told that you can’t is that you need to be deterred. It is 

always the case, there is not a single defendant that appears in a case 

like this that doesn’t say they have learned their lesson and they won’t 

come back. And I have lots of examples of people who have told me 

that sitting in that chair . . . and they end up returning. I think that is a 

significant risk for you, considering this pattern and the manner in 

which you have been treated by immigration authorities, which has 

been from lenient to being aggressively more severe, to this finally 

having to get your attention by prosecuting you. You need to get the 

message and be deterred not to come to the United States. And 

frankly we need to let other people that you will see in Mexico, or 

they are thinking about what happened to you, that if you come back 

seven times there is a consequence to that, and that consequence is 

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one of incarceration. So deterrence is not just for you, but it is for 

others as well. And this particular case, considering your conduct, 

really really warrants that.

Another is to protect the public from future crimes. And we 

know that even when you are here, one way of getting your attention 

and encouraging you not to come back is when you come back I know 

that you commit crimes, and the public is entitled to be protected from 

that.

So considering all of the 3553 factors, including the nature and 

circumstances of this very offense, and your history and 

characteristics as well as those that are to be considered by me in 

connection with imposing a reasonable sentence, I think the sentence 

in this case is one, the one I intend to impose, is one that completely 

complies with and takes into account and maybe even compelled by 

the 3553 factors. 

The court then imposed a sentence of 25 months’ imprisonment and three years’ 

supervised release. The court then stated:

I said I have considered the factors under 3553(a), and believe 

that this is one of those cases where it has actually compelled a 

sentence of this sort. I think, and I have not often done this, but I 

want this to be known to the Circuit. That having considered all the 

circumstances of your conduct and your conduct in the United States 

when you have returned here, that under the 3553 factors, considering 

your repeated conduct in returning to the United States, of committing 

crimes once you are here, and then not abiding by the terms of 

supervision under the State authorities, that under the circumstances 

of this case and under the 3553 factors, that even if I am wrong, under 

the guidelines, which I believe I am not, and specifically whether or 

not that eight-point enhancement applies or not, that this is the 

sentence that I would impose in this case because of your conduct and 

the history that you’ve exhibited. So that is the sentence I intend to 

impose. 

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Tirado served his custodial sentence. The Bureau of Prisons released him 

into the custody of the Department of Homeland Security, Immigration and 

Customs Enforcement (ICE) in January 2017. ICE removed Tirado from the 

United States to Mexico in February 2017.2

II. DISCUSSION

Federal Rule of Criminal Procedure 52(a), entitled “Harmless Error,” 

provides that “[a]ny error, defect, irregularity, or variance that does not affect 

substantial rights must be disregarded.” Affecting substantial rights “[i]n most 

cases . . . means that the error must have been prejudicial: It must have affected 

the outcome of the district court proceedings.” United States v. Olano, 507 U.S. 

725, 734 (1993). If a defendant makes a timely objection to an alleged error and 

Rule 52(a) applies, this Court engages in an analysis of the district court record to 

determine whether the error was prejudicial. Id. Rule 52(a) precludes error 

correction only if the error “does not affect substantial rights.” Id. at 735.

As detailed above, Tirado made a timely objection to the imposition of the 

8-point enhancement, and thus we must correct any error in imposing that 

enhancement unless the error does not affect substantial rights. Id. The Supreme 

Court held, in the context of reviewing whether a defendant’s substantial rights 

 2

 This case is not rendered moot by Tirado’s deportation as he is still serving a three-year 

term of supervised release. See United States v. Orrega, 363 F.3d 1093, 1095-96 (11th Cir. 

2004); Dawson v. Scott, 50 F.3d 884, 886 n.2 (11th Cir. 1995). 

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were affected under plain error review,3 that “[w]hen a defendant is sentenced 

under an incorrect Guidelines range—whether or not the defendant’s ultimate 

sentence falls within the correct range—the error itself can, and most often will, be 

sufficient to show a reasonable probability of a different outcome absent the error.” 

Molina-Martinez v. United States, 136 S. Ct. 1338, 1345 (2016). Thus, the 

Supreme Court explained that an incorrect calculation of a Guidelines range will 

almost always affect a defendant’s substantial rights; however, the Court left open 

the possibility that “[t]here may be instances when, despite application of an 

erroneous Guidelines range, a reasonable probability of prejudice does not exist.” 

Id. at 1346.

Tirado’s sentencing transcript shows that even assuming, arguendo, the 

district court erred in imposing the 8-level enhancement, “a reasonable probability 

of prejudice does not exist.” Id. In fact, the example of “a reasonable probability” 

that no prejudice exists cited by the Supreme Court is the exact situation we have 

in this case:

The record in a case may show, for example, that the district court 

thought the sentence it chose was appropriate irrespective of the 

Guidelines range. Judges may find that some cases merit a detailed 

explanation of the reasons the selected sentence is appropriate. And 

that explanation could make it clear that the judge based the sentence 

he or she selected on factors independent of the Guidelines. The 

 3

 Federal Rule of Criminal Procedure 52(b), entitled “Plain Error,” provides that “[a] 

plain error that affects substantial rights may be considered even though it was not brought to the 

court’s attention.” 

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Government remains free to poin[t] to parts of the record—including 

relevant statements by the judge—to counter any ostensible showing 

of prejudice the defendant may make. 

Id. at 1346-47 (quotation omitted). 

The district judge made clear that he would impose the same 25-month 

sentence absent the 8-level enhancement. The district judge knew he could be 

imposing an upward variance from the Guidelines range, and thoroughly explained 

his reasons for doing so. Despite Tirado’s protestations that a district judge’s 

explanation that he would impose the same sentence independent of the Guidelines 

calculation effectively insulates the sentence from review, the Supreme Court 

expressly allowed for such an explanation to factor into harmless error review in 

Molina-Martinez. 136 S. Ct. at 1346.

Moreover, our Court has encouraged district courts with disputed Guidelines 

issues to state on the record if the ultimate resolution of the issue does not affect 

the sentence imposed. United States v. Keene, 470 F.3d 1347, 1349 (11th Cir. 

2006). We explained “pointless reversals and unnecessary do-overs of sentence 

proceedings can be avoided if district courts faced with disputed guidelines issues 

state that the guidelines advice that results from decision of those issues does not 

matter to the sentence imposed after the § 3553(a) factors are considered.” Id.

(quotation omitted). However, the district court’s mere statement it would impose 

the same sentence regardless of the disputed Guidelines issue is not enough to 

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show harmless error; “the sentence imposed through the alternative or fallback 

reasoning of § 3553(a) must [also] be reasonable.” Id. 

In determining whether the sentence is reasonable, “we must assume that 

there was a guidelines error—that the guidelines issue should have been decided in 

the way the defendant argued and the advisory range reduced accordingly—and 

then ask whether the final sentence resulting from consideration of the § 3553(a) 

factors would still be reasonable.” Id.

Our reasonableness review takes into account the § 3553(a) factors and the 

advisory Guidelines range. Id. at 1350. The district court must impose a sentence 

“sufficient, but not greater than necessary, to comply with the purposes” listed in 

§ 3553(a)(2). 18 U.S.C. § 3553(a). In imposing Tirado’s sentence, the district 

judge specifically discussed promoting respect for the law, adequate deterrence, 

and protecting the public from future crimes. See 18 U.S.C. § 3553(a)(2)(A)-(C). 

The district judge also considered the nature and circumstances of the offense and 

the history and characteristics of the defendant, noting Tirado’s repeated reentries 

into the United States and disregard for the law while in the United States. See 18 

U.S.C. § 3553(a)(1). As stated previously, without the 8-point enhancement, 

Tirado’s advisory Guidelines range would have been 15 to 21 months’ 

imprisonment, and his statutory maximum was 20 years’ imprisonment. Given 

the circumstances, a 25-month sentence is not unreasonable whether the Guidelines 

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range is 15 to 21 months or 24 to 30 months. See Keene, 470 F.3d at 1350.

III. CONCLUSION

We conclude that even if there was a misapplication of the §2L1.2(b)(1)(C) 

enhancement, “a reasonable probability of prejudice does not exist.” See MolinaMartinez, 136 S. Ct. at 1346. Tirado’s 25-month sentence is reasonable, and the 

district court set forth sufficient reasons for that sentence irrespective of the 

Guidelines range. We affirm Tirado’s sentence.

AFFIRMED

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WILSON, Circuit Judge, concurring:

I concur with the majority and write separately to respond in more depth to 

the government’s argument that Tirado-Yerena’s deportation moots this appeal. 

Tirado-Yerena was deported after his custodial sentence but before his supervised 

release. Thus, the mootness inquiry here comprises two questions: (1) whether

Tirado-Yerena’s challenge to his expired custodial sentence is moot and

(2) whether either the expiration of Tirado-Yerena’s custodial sentence or his 

deportation moots his challenge to the supervised release. Because I answer the 

second question in the negative, I concur with the majority’s decision to consider 

the merits of this appeal.

A. Custodial Sentence

Tirado-Yerena’s challenge to his expired custodial sentence is moot. 

Mootness, like standing, derives from Article III, Section 2 of the Constitution, 

which limits a court’s power to the adjudication of a case or controversy. 

“Throughout the litigation, the party seeking relief must have suffered, or be 

threatened with, an actual injury traceable to the [other party] and likely to be 

redressed by a favorable judicial decision.” United States v. Juvenile Male, 

564 U.S. 932, 936, 131 S. Ct. 2860, 2864 (2011) (per curiam) (internal quotation 

marks omitted). “[A] case is moot when the issues presented are no longer live or 

13

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the parties lack a legally cognizable interest in the outcome.” Friends of the Earth, 

Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 212, 120 S. Ct. 693, 721 

(2000) (internal quotation marks omitted). To overcome a claim of mootness, a

defendant who wishes to continue challenging a conviction for which he has 

finished serving a sentence must show that he suffers from a “collateral 

consequence” of his conviction; if the defendant challenges the expired sentence, a 

“collateral consequence” of his sentence. Juvenile Male, 564 U.S. at 936, 

131 S. Ct. at 2864. 

We presume that a conviction has collateral consequences. Id.; see also 

Sibron v. New York, 392 U.S. 40, 55, 88 S. Ct. 1889, 1899 (1968) (“The Court thus 

acknowledged the obvious fact of life that most criminal convictions do in fact 

entail adverse collateral legal consequences.”). Thus, if a defendant challenges his

conviction, we presume that the appeal is not moot. See Juvenile Male, 564 U.S. 

at 936, 131 S. Ct. at 2864. However, no such presumption exists for a defendant 

who challenges his sentence, not his conviction. The burden of proving a 

“collateral consequence” of the expired sentence remains with the defendant. Id. 

And “the most generalized and hypothetical of consequences” are insufficient to 

meet this burden. See Spencer v. Kemna, 523 U.S. 1, 10, 118 S. Ct. 978, 984 

(1998). The collateral consequence must be “an actual injury traceable to the 

[sentence] and likely to be redressed by a favorable” outcome on appeal. See

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Juvenile Male, 564 U.S. at 936, 131 S. Ct. at 2864 (internal quotation marks 

omitted).

Because Tirado-Yerena challenges his sentence, he bears the burden of 

proving some collateral consequence of his expired custodial sentence. TiradoYerena argues that his lengthy custodial sentence was based on a finding that he 

committed an “aggravated felony,” a finding which “would have collateral 

consequences for the appellant in any future efforts to obtain relief through the 

immigration courts.” Under the 2014 Sentencing Guidelines, the sentencing court 

had imposed an enhancement based on a finding that Tirado-Yerena committed an 

“aggravated felony”—a term that borrowed its definition from the Immigration and 

Nationality Act. U.S.S.G. § 2L1.2(b)(1)(C) (2014); 8 U.S.C. § 1101(a)(43).

However, Tirado-Yerena’s hypothetical “relief through the immigration 

courts” is too speculative to sustain a “collateral consequence.” Tirado-Yerena has 

been granted voluntary departure four times and has been deported twice. After 

serving his custodial sentence, Tirado-Yerena was deported under 8 U.S.C. 

§ 1231(a)(5), which reinstates a “prior order of removal” if the “alien has reentered 

the United States illegally after having been removed or having departed 

voluntarily.” Tirado-Yerena’s receiving “relief through the immigration courts” is 

highly unlikely as it stands. 

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Also, he fails to explain the type of relief he would seek “through the 

immigration courts” and how the sentencing court’s finding of “aggravated felony” 

would influence an immigration court’s resolution of this request for relief. See 

Juvenile Male, 564 U.S. at 937, 131 S. Ct. at 2864 (“[A] possible, indirect benefit 

in a future lawsuit cannot save this case from mootness.” (emphasis omitted)); 

Commodity Futures Trading Comm’n v. Bd. of Trade, 701 F.2d 653, 656 (7th Cir. 

1983) (Posner, J.) (“[O]ne can never be certain that findings made in a decision 

concluding one lawsuit will not some day . . . control the outcome of another suit. 

But if that were enough to avoid mootness, no case would ever be moot.”). This 

case is distinguishable from Mingkid, in which two aliens appealed directly from 

the Board of Immigration Appeals and in which the appealed decision found that 

they had filed a frivolous application, a finding “[o]ften referred to as the ‘death 

sentence’ for an alien’s immigration prospects.” See Mingkid v. U.S. Atty. Gen., 

468 F.3d 763, 768 (11th Cir. 2006). Tirado-Yerena fails to meet the burden of 

proving a “collateral consequence” of his expired custodial sentence, and his 

challenge to the expired custodial sentence is moot.

B. Supervised Release

Tirado-Yerena’s challenge to the supervised release, however, is not moot. 

Supervised release is a part of his sentence that will be affected “by a favorable 

judicial decision.” Juvenile Male, 564 U.S. at 936, 131 S. Ct. at 2864. And his 

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deportation does not change that supervised release remains a “live” issue. Friends 

of the Earth, 528 U.S. at 212, 120 S. Ct. at 721. 

Despite the expiration of Tirado-Yerena’s custodial sentence, the outcome of 

this sentencing appeal will affect his supervised release. One of the factors that a 

sentencing court must consider “in including a term of supervised release” is the 

“sentencing range.” 18 U.S.C. §§ 3583(c), 3553(a)(4). Thus, the sentencing court 

was required to consider the eight-level enhancement to Tirado-Yerena’s sentence 

before deciding to impose a three-year supervised release. A favorable resolution 

of Tirado-Yerena’s appeal of the enhancement might change the duration of his 

supervised release. 

The expiration of Tirado-Yerena’s custodial sentence did not moot his 

challenge to the supervised release. See United States v. Page, 69 F.3d 482, 487 

n.4 (11th Cir. 1995) (“We hold that this appeal is not moot. . . . [A]ll of the 

defendants are at least still serving their terms of supervised release, which involve 

restrictions on their liberty. Only success in this appeal could alter the supervised 

release portion of their sentences.”), superseded by statute on other grounds, 

18 U.S.C. § 3664(f)(1)(A); Dawson v. Scott, 50 F.3d 884, 886 n.2 (11th Cir. 1995)

(“Dawson is still serving his term of supervised release, which is part of his 

sentence and involves some restrictions upon his liberty. Because success for 

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Dawson could alter the supervised release portion of his sentence, his appeal is not 

moot.”).

Also, Tirado-Yerena’s deportation does not moot his challenge to the 

three-year supervised release. The sentencing court stated, “Even if you are 

deported, there are conditions of supervised release that you will have to comply 

with during those three years.” The sentencing judgment lists the conditions, one 

of which is for Tirado-Yerena to keep the probation office of the Northern District 

of Georgia apprised of any changes in his Mexico address. 

The United States questions whether these conditions amount to supervised 

release: “[A]lthough he is technically subject to a term of supervised release, he is 

not actually subject to the strictures and requirements of supervised release in 

Mexico.” However, 18 U.S.C. § 3583 states:

If an alien defendant is subject to deportation, the court 

may provide, as a condition of supervised release, that he 

be deported and remain outside the United States, and 

may order that he be delivered to a duly authorized 

immigration official for such deportation.

(emphasis added). And commentary in the Sentencing Guidelines states:

In a case in which the defendant is a deportable 

alien . . . , the court ordinarily should not impose a term 

of supervised release. . . . The court should, however, 

consider imposing [the term] . . . if the court determines 

it would provide an added measure of deterrence and 

protection based on the facts and circumstances of a 

particular case.

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U.S.S.G. § 5D1.1 cmt. n.5. 

Both 18 U.S.C. § 3583 and the Sentencing Guidelines establish that, if 

supervised release includes conditions to follow deportation, the deportation 

neither extinguishes nor tolls the term of supervised release. Other circuits have 

held the same. See, e.g., United States v. Williams, 369 F.3d 250, 253 (3d Cir. 

2004) (“We will follow the other courts of appeals that have held that supervised 

release is not automatically extinguished by deportation.”); United States v. 

Akinyemi, 108 F.3d 777, 780 (7th Cir. 1997) (holding that a defendant’s re-entering 

the States during his term of supervised release was a crime “subject to 

enhancement” because not only was illegal re-entry a crime but also the 

prohibition of illegal re-entry was a condition of his supervised release); United 

States v. Ignacio Juarez, 601 F.3d 885, 890 (9th Cir. 2010) (holding that, although 

“fugitive tolling” applies to a defendant who escapes during his supervised release, 

a defendant’s “term of supervised release continues to run” if he was removed 

pursuant to a deportation order).

However, even if supervised release applies only in the event of TiradoYerena’s re-entry, his deportation does not moot his challenge to the supervised 

release. In Orrega, our circuit held that a defendant’s deportation after his 

custodial sentence but before such supervised release did not moot his sentencing 

appeal. United States v. Orrega, 363 F.3d 1093, 1096 (11th Cir. 2004). 

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Considering the specific circumstances of the defendant and the likelihood of his 

re-entry, Orrega highlighted that the defendant lived in the United States most of 

his life and that his entire family is in the States. Id. at 1095 n.2. Orrega

concluded, “There continues to be an active controversy in this case because [the

defendant] may, at some point, re-enter the United States.” Id. at 1095.1 The 

likelihood of re-entry in this case is likewise high. Four voluntary departures and 

two deportations seem not to have deterred Tirado-Yerena in the slightest; he 

continues to return to the United States.

Attempting to distinguish Orrega, the government argues that, whereas here 

the defendant appeals his sentence, in Orrega the government appealed the 

defendant’s sentence. However, the government fails to explain a reason for the 

distinction. Orrega relied on United States v. Villamonte-Marquez, 462 U.S. 579, 

581 n.2, 103 S. Ct. 2573, 2575 n.2 (1983), which considered both the “possibility 

that respondents could be extradited and imprisoned for their crimes” and the 

possibility that “respondents [could] manage to re-enter this country on their own.” 

 1 Attempting to identify a circuit split, the government cites cases from other circuits 

holding that a defendant’s deportation mooted a sentencing appeal. However, each holding is 

fact-specific, and none contradict this concurrence. See United States v. DeLeon, 444 F.3d 41, 

56 (1st Cir. 2006) (finding mootness because the defendant failed to “identif[y] any practical 

impact . . . of the Booker supervised release issue” but declining to “adopt[] a general rule”); 

Okereke v. United States, 307 F.3d 117, 121 (3d Cir. 2002) (finding that a deportation mooted a 

sentencing appeal after considering only the defendant’s prison sentence and not his supervised 

release); United States v. Vera-Flores, 496 F.3d 1177, 1181–82 (10th Cir. 2007) (holding that the 

defendant “has not met [his] burden” after rejecting the defendant’s only argument against 

mootness—the possibility that the Attorney General might grant his application for lawful 

re-entry); United States v. Frook, 616 F.3d 773, 778 (8th Cir. 2010) (relying on Vera-Flores).

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Id. The same level of speculation is involved in the consideration of each 

possibility, and Orrega’s holding applies regardless of which party appeals a 

defendant’s sentence.

Although Tirado-Yerena’s challenge to the expired custodial sentence is 

moot, his challenge to the supervised release is not. Neither the expiration of 

Tirado-Yerena’s custodial sentence nor his deportation moots his challenge to the 

supervised release. I concur with the majority’s decision to consider the merits of 

this appeal.

 

 

 

Case: 15-15094 Date Filed: 05/22/2017 Page: 21 of 21