FILED

United States Court of Appeals

Tenth Circuit

April 25, 2011

Elisabeth A. Shumaker

Clerk of Court

PUBLISH

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v. No. 10-2063

JOSE SANTOS VAQUERA-JUANES,

Defendant - Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW MEXICO

(D.C. NO. 2:09-CR-01049-JB-1)

Thomas B. Jameson, Assistant Federal Public Defender, Albuquerque, New

Mexico, for Defendant-Appellant.

David N. Williams, Assistant United States Attorney (Kenneth J. Gonzales,

United States Attorney, with him on the brief), Albuquerque, New Mexico, for

Plaintiff-Appellee.

Before BRISCOE, Chief Judge, MURPHY, and MATHESON, Circuit Judges.

MURPHY, Circuit Judge.
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I. Introduction

Appellant, Jose Santos Vaquera-Juanes, was charged in a single-count

indictment with knowingly attempting to reenter the United States after having

been previously deported. Vaquera-Juanes pleaded guilty and was sentenced to

forty-nine months’ imprisonment and two years’ supervised release. Although he

did not raise the issue during sentencing, Vaquera-Juanes now argues the district

court erred by imposing a condition of supervised release without first making

required findings. See United States v. Souser, 405 F.3d 1162, 1165 (10th Cir.

2005) (holding a district court may not impose an occupational restriction without

first finding that the criteria set forth in USSG § 5F1.5 are met). 

Exercising jurisdiction pursuant to 28 U.S.C. § 1291 and 18 U.S.C.

§ 3742(a), this court dismisses Vaquera-Juanes’s appeal on prudential ripeness

grounds. 

II. Background

In April 2009, Vaquera-Juanes was charged in a one-count indictment with

attempted illegal reentry by a previously removed alien. He pleaded guilty to

violating 8 U.S.C. § 1326 and a presentence investigation report (“PSR”) was

prepared prior to sentencing. The PSR revealed that Vaquera-Juanes’s prior

criminal conduct included several drunk driving convictions and two federal drug

convictions, one committed when Vaquera-Juanes was seventy-one years old and

the other committed when he was seventy-four years old. Accordingly, the PSR
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calculated Vaquera-Juanes’s criminal history at Category V based on eleven

criminal history points. The Category V criminal history, coupled with a total

offense level of twenty-one, resulted in an advisory guidelines range of seventy to

eighty-seven months’ imprisonment. 

Vaquera-Juanes filed a sentencing memorandum requesting a substantial

downward variance from the advisory guidelines range. In support, VaqueraJuanes cited his advanced age and the fact that he had lived in the United States,

albeit illegally, for most of his life. The Government opposed the downward

variance, asking the district court to sentence Vaquera-Juanes within the advisory

guidelines range. The district court concluded a downward variance was

appropriate and sentenced Vaquera-Juanes to forty-nine months’ imprisonment to

be followed by a two-year term of supervised release. 

One of the standard conditions of supervision, and the only one relevant to

the issue Vaquera-Juanes raises on appeal, requires Vaquera-Juanes to “notify

third parties of risks that may be occasioned by [his] criminal record or personal

history.” A similar supervised release condition was held by this court to be an

occupational restriction that may not be imposed unless the sentencing court first

finds that it comports with § 5F1.5 of the Sentencing Guidelines. Souser, 405

F.3d at 1165-66. Although Vaquera-Juanes now argues the district court imposed

this condition without making the required findings, he did not object on this

basis during sentencing. 
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III. Discussion

Because Vaquera-Juanes did not raise the alleged error with the district

court during the sentencing hearing, he concedes the issue is reviewed only for

plain error. United States v. Mike, 632 F.3d 686, 691 (10th Cir. 2011). The

Government, however, argues this court does not have jurisdiction to reach the

merits of Vaquera-Juanes’s appeal because the issue he raises is not ripe. See

New Mexicans for Bill Richardson v. Gonzales, 64 F.3d 1495, 1498-99 (10th Cir.

1995) (“The question of whether a claim is ripe for review bears on a court’s

subject matter jurisdiction under the case or controversy clause of Article III of

the United States Constitution.”). Ripeness is a justiciability doctrine “drawn

both from Article III limitations on judicial power and from prudential reasons for

refusing to exercise jurisdiction.” Reno v. Catholic Soc. Servs., Inc., 509 U.S. 43,

57 n.18 (1983); see also Roe No. 2 v. Ogden, 253 F.3d 1225, 1231 (10th Cir.

2001) (acknowledging the ripeness doctrine has both constitutional and prudential

components). 

The Government’s first argument implicates constitutional ripeness. It

makes a general and sweeping assertion that challenges to conditions of

supervised release brought while a defendant, like Vaquera-Juanes, is still serving
1

The Government, inter alia, argues “Vaquera[-Juanes] could die in

prison,” presumably because he is already seventy-seven years old. The same,

however, could be said for all criminal defendants. 

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an antecedent period of imprisonment are never ripe because the conditions may

never be enforced.1

 This argument is easily rejected.

Conditions of supervised release form a part of the criminal judgment and

thus, in the Article III sense, a challenge to them involves a genuine case or

controversy because the judgment is a final court order binding on an incarcerated

defendant at the time of his appeal. See Mike, 632 F.3d at 692 (“[S]upervised

release terms are directly appealable, despite the fact that they are subject to later

modification, because they are part of the sentencing court’s final orders.”

(quotation omitted)). The specific issue Vaquera-Juanes raises on appeal involves

a genuine case or controversy because the sentence imposed by the district court

is final and Vaquera-Juanes’s challenge is concrete: the challenged condition is

part of a final judgment currently binding on Vaquera-Juanes and he alleges the

court committed a procedural error by imposing a condition of supervised release

without making required findings. Further, this court has previously accepted the

Government’s position, directly contrary to the one it now makes, that a

defendant’s challenge to a supervised release condition must be brought on direct

appeal. United States v. Wayne, 591 F.3d 1326, 1334, 1335 n.8 (10th Cir. 2010)

(refusing to consider defendant’s argument that the district court abused its
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discretion in imposing supervised release conditions because the issue was not

raised on direct appeal). 

Although this appeal satisfies the Article III component of the ripeness

inquiry, we are nevertheless persuaded that, for prudential reasons, jurisdiction

should not be exercised and the appeal should be dismissed. Questions of

prudential ripeness typically arise only in civil cases. This court, however, has

previously addressed the issue in criminal cases involving conditions of

supervised release. Id. at 1329 n.1; United States v. White, 244 F.3d 1199, 1202-

04 (10th Cir. 2001). The Government relies on those cases for its prudential

ripeness argument. 

In United States v. White, the appellant served his custodial sentence and

then brought a challenge to three conditions of supervised release, arguing they

infringed his constitutional rights. 244 F.3d at 1201. The Government argued for

dismissal on ripeness grounds because none of the conditions had yet been

enforced against the appellant and the challenges were therefore “hypothetical

and speculative.” Id. at 1202. This court addressed the prudential ripeness issue

by reference to the framework set out by the Supreme Court in Abbott

Laboratories v. Gardner, 387 U.S. 136 (1967), examining both the fitness of the

issues raised by the appellant for judicial review and the hardship to the parties

from withholding that review. Id. at 1202-05. We concluded the appellant’s

claims were ripe for judicial review because, inter alia, the issues presented on
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appeal were easily resolved on purely legal grounds and prompt review of the

appellant’s claims would promote judicial efficiency by eliminating the

possibility of multiple sentencing appeals. Id. at 1204. Further, the appellant was

able to show hardship because he successfully demonstrated that a violation of the

challenged condition would likely result in his immediate reincarceration. Id. at

1204-05. 

United States v. Wayne involved an appellant who completed her term of

incarceration and then was alleged to have violated one of the conditions of

supervised release. 591 F.3d at 1329. The district court ordered the appellant to

comply with the condition and she appealed that order. Id. This court sua sponte

acknowledged a ripeness issue, noting the appellant was seeking relief from a

court order but the district court had “not found that [appellant] violated the

special conditions and ha[d] not revoked her supervised release.” Id. at 1329 n.1. 

Employing the approach previously taken in White, this court concluded the

appellant would suffer a hardship if her claims were not resolved because she

faced a “meaningful possibility of re-incarceration.” Id. Further, the issues were

fit for judicial review because they were easily resolved on the merits and it

furthered the interests of judicial efficiency to address those issues in the pending

appeal rather than remand the matter to the district court and wait for the

revocation of the appellant’s term of supervised release. Id. 
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Our analysis of prudential ripeness follows White’s approach of examining

the fitness of the issue raised on appeal for judicial review and the potential

hardship to the defendant from withholding review. 244 F.3d at 1202. At first

blush, it appears Vaquera-Juanes’s appeal is fit for judicial review. It is

undeniable that Vaquera-Juanes’s challenge could be easily resolved on the merits

based on the record currently before this court. Resolving Vaquera-Juanes’s

appeal at this time, however, would not be an efficient use of judicial resources

because any relief he obtains would be illusory. Vaquera-Juanes is a removable

alien. The district court recommended that Immigration and Customs

Enforcement (“ICE”) begin removal proceedings during his term of incarceration. 

The record thus indicates Vaquera-Juanes will be removed once he completes his

term of custodial confinement and fails to reveal any realistic possibility he will

be released from immigration detention while he awaits physical removal. 

Accordingly, the issue Vaquera-Juanes raises in this appeal is not fit for judicial

review at this time because the occupational restriction imposed by the district

court currently has no practical effect on him, and will have no practical effect on

him during the two-year period of supervised release. Regardless whether this

court affirms the district court’s judgment or remands the matter for further

proceedings, our review of the merits would be a waste of judicial resources. The

best possible outcome for Vaquera-Juanes—a remand for resentencing and,

ultimately, the elimination of the occupational restriction—will result in further
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proceedings in district court that would be essentially meaningless, compounding

the inefficient use of judicial resources. Thus, a decision in his favor would

actively undermine rather than promote judicial efficiency. 

For many of the same reasons, Vaquera-Juanes has also failed to show he

will suffer any hardship if we dismiss his appeal on prudential grounds. VaqueraJuanes’s situation is materially different from those presented in White and

Wayne. In both Wayne and White, the condition imposed by the district court was

fixed and determinate at the time it was imposed. As soon as appellant Wayne

was released from incarceration she was required to “participate in a mental

health evaluation as directed by her probation officers.” Wayne, 591 F.3d at

1329. Similarly, appellant White was required to submit to a search of his home,

presumably to determine if he was in possession of several restricted items,

including “sexually explicit material” and “a computer with Internet access.” 

White, 244 F.3d at 1201. Neither Wayne nor White was a removable alien and

both had already been released after serving their terms of imprisonment. 

Vaquera-Juanes’s situation is more attenuated. Most critically, the

challenged condition will have no impact on him unless he is released into the

United States after his term of incarceration is completed. During that period of

freedom, Vaquera-Juanes would have to seek and obtain employment before the

challenged condition impacted him. The possibility that Vaquera-Juanes will be

released is remote. The district court has ordered removal proceedings to begin
2

This court expresses no opinion on the propriety of imposing the disputed

standard condition of supervised release on a removable alien.

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during the term of incarceration and Vaquera-Juanes presents no convincing

argument he will not be taken into ICE custody upon his release from BOP

custody and immediately deported. Further, he fails to convince this court he will

likely obtain the Attorney General’s permission to remain in this country, or

return with permission, while the two-year term of supervised release is in effect. 

See 8 U.S.C. § 1182(a)(9) (restricting the admissibility of aliens who have

previously been removed). Vaquera-Juanes has likewise failed to give this court

any reason to believe he would be able to obtain lawful employment in this

country even if released from BOP custody. Cf. Lane v. Williams, 455 U.S. 624,

633 n.13 (1982) (concluding a challenge to a mandatory parole provision would

affect respondents only if they violated state law and respondents were

“able—and indeed required by law—to prevent such a possibility from

occurring”). 

Because Vaquera-Juanes has shown no practical possibility he will ever

legally be in a position to violate the terms of the condition he challenges, he has

failed to show any likelihood his term of supervised release will be revoked

because of a violation of the challenged condition. Accordingly, even if the

disputed condition remains part of the criminal judgment,2

 there is no reasonable
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possibility it will result in Vaquera-Juanes’s reincarceration and he has thus failed

to show he will suffer any hardship if we dismiss his appeal. 

IV. Conclusion

Having reviewed the record and considered the parties’ arguments under

the applicable standards, we dismiss Vaquera-Juanes’s appeal on prudential

ripeness grounds.