United States Court of Appeals

for the Fifth Circuit ____________

No. 22-50827

Summary Calendar

____________

United States of America, 

Plaintiff—Appellee, 

versus

Ojin Kim, 

Defendant—Appellant. 

______________________________

Appeal from the United States District Court 

for the Western District of Texas

USDC No. 7:21-CV-250

USDC No. 7:17-CR-183-1 

______________________________

Before Barksdale, Graves, and Oldham, Circuit Judges. 

Per Curiam:*

Ojin Kim, former federal prisoner # 30806-479, challengesthe district 

court’s denial of his 28 U.S.C. § 2255 motion (person in federal custody may 

move to vacate, set aside, or correct sentence). Our court granted a

_____________________

* This opinion is not designated for publication. See 5th Cir. R. 47.5.

United States Court of Appeals

Fifth Circuit

FILED

November 27, 2023

Lyle W. Cayce

Clerk

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No. 22-50827

certificate of appealability (COA) for “his claim that his trial counsel was 

ineffective at sentencing” and denied a COA for his other claims. 

The Government contends this appeal is moot because Kim’s 

sentence has fully expired. “Whether an appeal is moot is a jurisdictional 

matter, [because] it implicates the Article III requirement that there be a live 

case or controversy.” Bailey v. Southerland, 821 F.2d 277, 278 (5th Cir.

1987). “Under Article III’s case-or-controversy requirement, to invoke the 

jurisdiction of a federal court, a litigant must have suffered, or be threatened 

with, an actual injury traceable to the defendant and likely to be redressed by 

a favorable judicial decision.” United States v. Heredia-Holguin, 823 F.3d 337,

340 (5th Cir. 2016) (en banc) (citation omitted). 

While in custody, Kim filed his § 2255 motion. But, the case-orcontroversy requirement is distinct from the earlier-referenced § 2255 “in 

custody” requirement. See Spencer v. Kemna, 523 U.S. 1, 7 (1998) (evaluating 

case-or-controversy requirement after establishing defendant met § 2255 “in 

custody” requirement). The former “subsists through all stages of federal 

judicial proceedings, trial and appellate”. Lewis v. Cont’l Bank Corp., 494 

U.S. 472, 477 (1990). “The parties must continue to have a personal stake 

in the outcome of the lawsuit.” Id. at 78 (citation omitted). 

“In criminal cases, [the case-or-controversy] requirement means [, 

inter alia,] that a defendant wishing to continue his appeals after the 

expiration of his sentence must suffer some ‘continuing injury’ or ‘collateral 

consequence’sufficient to satisfy Article III.” United States v. Juv. Male, 564 

U.S. 932, 936 (2011). Accordingly, a defendant challenges only an expired 

sentence, he has the burden of identifying an ongoing collateral consequence 

that is traceable to the challenged portion of the sentence and would likely be 

redressed by a favorable judicial decision. E.g., id. 

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Kim fails to meet his burden. In his opening brief, he mentions his 

continued pursuit of the appeal is linked to his immigrant status and the 

possibility future immigration proceedings may be predicated on the 

outcome of this action. Kim provides, however, no briefing on whether: he 

has been placed in immigration proceedings; any immigration provision 

would apply to him; or the immigration consequence would likely be 

redressed by a favorable decision. See Juv. Male, 564 U.S. at 936 (outlining 

burden for defendant challenging only expired sentence). “[T]he mere 

possibility of future consequences is too speculative to give rise to a case or 

controversy.” Bailey, 821 F.2d at 279. Therefore, Kim has waived his

contention by failing to brief it adequately. E.g., Fed. R. App. P.

28(a)(8)(A) (requiring appellant’s brief to include contentions and reasons 

for them); United States v. Edwards, 303 F.3d 606, 647 (5th Cir. 2002)

(explaining unbriefed issues are waived on appeal). His assertions raising 

other collateral consequences are bare and speculative.

DISMISSED.

Case: 22-50827 Document: 00516979252 Page: 3 Date Filed: 11/27/2023