Monday, July 09, 2018

Appeal of Served Sentence Not Moot Where New Sentence Relates To It

USv. Fluker: In 1992 Fluker was convicted of several firearms charges and sentenced, under ACCA, to 400 months in prison, later reduced to 387 months. After a successful Johnson 2255, he was resentenced (this time as a career offender) to 308 months, “which essentially equaled time served.” However, while in custody, Fluker committed other offenses for which he was convicted and sentenced to 120 months in prison (in another Circuit) to be served consecutively to the term on the first set of offenses.

On appeal, Fluker challenged the career offender designation and his 308-month sentence. The Government argued that the issue was moot, because that sentence had been discharged and Fluker was no longer in custody pursuant to that sentence, but to the second 120-month sentence. The Fourth Circuit concluded that the issue was not moot, because the “start date for Fluker’s [120-month] sentence was always and remains contingent on when he finishes serving the [original] sentence.” Thus, he as a “legally cognizable interest in the outcome of the appeal” because if “he prevails, his ultimate release date may once again shift to an earlier date.” Because the career offender designation was erroneous and the issue was not moot, the court vacated Fluker’s sentence and remanded for resentencing.

Congrats to Defender office in WDVA on the win!

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