Unpublished Disposition, 867 F.2d 612 (9th Cir. 1990)

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US Court of Appeals for the Ninth Circuit - 867 F.2d 612 (9th Cir. 1990)

Marco ABKASIS, Petitioner-Appellant,v.The UNITED STATES of America, Respondent-Appellee.

No. 87-5656.

United States Court of Appeals, Ninth Circuit.

Submitted*  Dec. 9, 1988.Decided Jan. 31, 1989.

Before JAMES R. BROWNING, SCHROEDER and NOONAN, Circuit Judges.


MEMORANDUM** 

Marco Abkasis, an Israeli resident, appeals the district court's dismissal of his 28 U.S.C. § 2255 motion. Abkasis contends that the district court sentenced him to more than five years' probation in violation of 18 U.S.C. § 3651.1  The district court dismissed the petition as moot. We reverse.

FACTS

Abkasis was convicted in 1981 of possession of counterfeit money in violation of 18 U.S.C. § 472. The district court suspended the imposition of sentence and placed Abkasis on three years' probation. While on probation, Abkasis was convicted of a drug offense. On October 4, 1985, the district court modified its 1981 sentence by extending the probation term to five years and adding the condition that Abkasis leave the United States and not return "within the probationary period without the prior express permission of the Probation Office and the U.S. Attorney General." Abkasis was then deported to Israel.

In January 1987, Abkasis filed a motion to vacate or set aside his sentence under 28 U.S.C. § 2255, alleging that the district court illegally resentenced him in 1985 by extending his probation for five more years in violation of 18 U.S.C. § 3651. The district court denied his section 2255 motion on the ground that Abkasis's claim was moot because he is still living in Israel.

ANALYSIS

This court reviews de novo a district court's dismissal of a 28 U.S.C. § 2255 petition. United States v. Quan, 789 F.2d 711, 713 (9th Cir.), cert. denied, 107 S. Ct. 16 (1986).

This court may not decide moot cases. Sample v. Johnson, 771 F.2d 1335, 1338 (9th Cir. 1985), cert. denied, 475 U.S. 1019 (1986). A case is moot when "the issues are no longer live or the parties lack a legally cognizable interest in the outcome" and when "a court's decision will no longer have an impact on [the petitioner]." Id. at 1338-39. " [A] criminal case is moot only if it is shown that there is no possibility that any collateral legal consequences will be imposed on the basis of the challenged conviction." Sibron v. New York, 392 U.S. 40, 57 (1968). See also Hirabayashi v. United States, 828 F.2d 591, 605 (9th Cir. 1987).

Abkasis's section 2255 motion raises a "live" issue. The district court's judgment of October 4, 1985, extends Abkasis's probationary period from three to five years. The correct probation term is the fundamental issue in his section 2255 petition, with the government arguing that the probation term does not expire until March 1, 1990. Abkasis's claim is "live" until the probation period expires. A favorable resolution of the issue will have an impact on Abkasis. If the court were to grant Abkasis's section 2255 motion, Abkasis would be subject to a reduced probationary period and would be able to reenter the United States prior to March 1, 1990 without the prior express permission of the Probation Office and the Attorney General. Accordingly, because Abkasis raises a live issue and deciding that issue will have an impact on him, his section 2255 motion is not moot. See Sibron, 392 U.S. at 57; Sample, 771 F.2d at 1338-39.

The government contends that Abkasis's claim must be moot because he is not subject to actual probation supervision while he lives in Israel and because he has not yet been denied reentry to the United States on the basis of his probationary status. This contention lacks merit because it reverses the standard set forth in Sibron. Sibron stated that a criminal case is moot "only if it is shown that there is no possibility that any collateral legal consequences will be imposed." Sibron, 392 U.S. at 57. Following Sibron, it is clear that the special reentry condition might bar Abkasis from this county and that, if Abkasis were readmitted before his probation expired, he would then be under the actual supervision and control of the Probation Department. Therefore, Abkasis's contention that the district court illegally sentenced him to more than five years' probation is not moot because there is a possibility that legal consequences will flow from his sentence.

REVERSED AND REMANDED.

 *

The panel finds this case appropriate for submission without oral argument pursuant to Fed. R. App. P. 34(a) and 9th Cir.R. 34-4

 **

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Circuit R. 36-3

 1

18 U.S.C. § 3651 provides, in part, that " [t]he period of probation, together with any extension thereof, shall not exceed five years."