NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff

- Appellee,

v.

RAUL ERNEST SAENZ,

Defendant

- Appellant. No. 18

- 56659

D.C. Nos. 3:16

- cv

- 01619

- JLS

3:97

- cr

- 02106

- JLS

- 1

MEMORANDUM *

Appeal from the United States District Court

for the Southern District of California

Janis L. Sammartino, District Judge, Presiding

Submitted January 14, 2021 * *

Pasadena, California

Before: CALLAHAN and WATFORD, Circuit Judges, and RAKOFF, ** * District

Judge.

Raul Ernest Saenz appeals from the district court’s order dismissing his 2 8

U.S.C. § 2255 motion to vacate and correct his sentence

. We affirm.

* 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 Jed S. Rakoff, United States District Judge for the

Southern District of New York, sitting by designation. 

# FILED

JAN 19 2021

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALSPage 2 of 3

The district court correctly held that Saenz’s § 2255 motion was untimely

.

As Saenz acknowledges, we rejected the same arguments he advances here in

United States v. Blackstone , 903 F.3d 1020 (9th Cir. 2018). There

, we held that

Johnson v. United States

, 576 U.S. 591 (2015)

, did not recognize a new right

applicable to the mandatory Sentencing Guidelines or to 18 U.S.C. § 924(c) on

collateral review. Blackstone , 903 F.3d at 1026

– 28. Saenz’s § 2255 motion is

therefore untimely.

We note that Saenz’s chal lenge to his career

- offender status under the

Sentencing Guidelines is not moot simply because he has been released from

custody

. It is true, of course, that a defendant ordinarily may not challenge a

sentence that has expired during the course of the proceedings. Lane v. Williams

,

455 U.S. 624, 631 (1982). However, while Saenz has been granted release, he has

not completed his sen tence: he remains subject to the three years of supervised

release imposed concurrently for each count of conviction. Where, as here, a

“district court has the statutory discretion to modify a defendant’s term of

supervised release following a successful sentencing challenge, the possibility that

the district court may exercise such discretion following this court’s decision is

sufficient to prevent an appeal from becoming moot.” United States v. D.M.

, 869

F.3d 1133, 1137 (9th Cir. 2017) (quoting United S tates v. Strong

, 489 F.3d 1055,

1060 (9th Cir. 2007))

. If Saenz ’s challenge to his career

- offender status werePage 3 of 3

meritorious

, “ there is a nontrivial possibility that the district court

. . . [would]

reduce his term of supervised release under § 3583(e).” A llen v. Ives

, 950 F.3d

1184, 1187 (9th Cir. 2020); see also 18 U.S.C. § 3583(e)(2) (“The court may

. . .

modify, reduce, or enlarge the conditions of supervised release, at any time prior to

the expiration or termination of the term of supervised release.” ).

We also note , a s to the challenge to his § 924(c) convictions , that Saenz filed

an “amended/renewed” § 2255 motion in the district court within one year of the

Supreme Court’s decision in United States v. Davis , 139 S. Ct. 2319 (2019), which

invalidated the residual clause of § 924(c), under which Saenz was found to have

been convicted of a crime of violence

. That motion remains pending and may

provide a vehicle for Saenz to pursue his claims.

Nevertheless, b ec ause we conclude that Saenz’s motion is untimely , we do

not reach his arguments as to the merits of his motion.

AFFIRMED.