In United States v. Livar, --- F.4th ---, No. 22-30213 (9th Cir. 2024), the Court vacated Adam Lloyd Livar’s sentence and remanded in a case in which Livar pled guilty to failing to register as a sex offender in violation of 18 U.S.C. § 2250(a).
One case with 4 different opinions:Per Curiam Opinion;
Concurrence by Judge Vratil;
Concurrence and Dissent by Judge VanDyke;
Concurrence and Dissent by Judge Sanchez.
"Because each panel member has issued their own opinion and the composition of the majority changes for different conclusions, this per curiam opinion provides (1) the necessary factual background to understand the individual decisions that follow, (2) the panel’s unanimous mootness analysis, and (3) a summary of the panel’s other holdings derived from the separate writings."
As to mootness:
We first address whether this appeal has become moot based on Livar’s release from the Federal Bureau of Prisons on June 6, 2023, to begin serving his five-year term of supervised release. After considering the parties’ supplemental briefing, we agree with Livar that this appeal is not moot.The government contends that the case is moot because the district court sentenced Livar to the minimum supervised release term allowed under the statute.After sentencing, however, the district court has discretion to “modify, reduce, or enlarge the conditions of supervised release, at any time prior to the expiration or termination of the term of supervised release.” 18 U.S.C. § 3583(e)(2). The court may also terminate an individual’s term of supervised release “at any time after the expiration of one year . . . if it is satisfied that such action is warranted by the conduct of the defendant released and the interest of justice.” 18 U.S.C. § 3583(e)(1). Under our precedent, the “possibility” that the district court may exercise its discretion at a future proceeding to reduce a term or modify the conditions of supervised release under 18 U.S.C. § 3583(e) is sufficient to prevent the case from being moot.Because the district court has the authority to modify or terminate Livar’s current supervised release obligations under 18 U.S.C. § 3583(e) following a successful appeal, the possibility that the district court may do so is sufficient to prevent the appeal from being moot.
Here is the summary of the other opinions:
First, all three panel members agree that when the government seeks to be relieved of its obligations under the plea agreement because, in its view, the defendant breached the plea agreement or failed to satisfy a condition precedent, the district court must hold an evidentiary hearing to resolve any such factual disputes. Because the district court declined to adjudicate whether Livar committed a new crime and therefore never made the required determination in this case, the panel unanimously concludes that Livar’s sentence should be vacated.Second, a majority of the panel (Judges VANDYKE and VRATIL) concludes due process does not require the government to seek or receive a judicial determination of a defendant’s failure to comply with the plea agreement before it submits a sentencing recommendation that differs from the terms of the agreement. The government thus does not breach its obligations under an agreement simply by submitting a different sentencing recommendation without a prior judicial determination of whether the defendant failed to comply with the plea agreement, nor is it required to first seek a preliminary determination as to whether its recommendation complies with the agreement. There must be a judicial determination, but it need not necessarily come first.Finally, a different majority of the panel (Judges SANCHEZ and VRATIL) concludes the proper remedy in this case is remand with instructions that judgment be entered with a term of imprisonment of time served and all other terms and conditions—including Livar’s five-year term of supervised release—to remain the same as the original judgment.
