Unpublished Disposition, 867 F.2d 614 (9th Cir. 1989)

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US Court of Appeals for the Ninth Circuit - 867 F.2d 614 (9th Cir. 1989)

UNITED STATES of America, Plaintiff-Appellee,v.Dana A. ROBERTS, Defendant-Appellant.

No. 88-3106.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Jan. 9, 1989.Decided Jan. 11, 1989.

Before EUGENE A. WRIGHT, TANG and WIGGINS, Circuit Judges.


ORDER

In sentencing, courts rely on three statutory provisions. A judge may fix: (1) a straight sentence with parole eligibility after service of one-third of the sentence, 18 U.S.C.A. Sec. 4205(a) (1985); (2) an indeterminate sentence with minimum and maximum confinement periods, Sec. 4205(b) (1); or (3) an indeterminate sentence with no minimum and only a maximum confinement period specified, Sec. 4205(b) (2). Edwards v. United States, 574 F.2d 937, 941 (8th Cir.), cert dismissed, 439 U.S. 1040 (1978); Izsak v. Sigler, 604 F.2d 1205, 1206 (9th Cir. 1979). Although Sec. 4205(b) (2) provides for immediate parole eligibility for a prisoner, the Parole Commission has discretion to determine the release date. Izsak, 604 F.2d at 1206.

Roberts raises the question whether the Parole Commission must consider him for parole under Sec. 4205(b) (2) before or at the one-third mark of his sentence to make the distinction among the Sec. 4205 provisions meaningful. Both parties have fully briefed and argued this issue.

We cannot decide this question. Roberts attacks the Commission's scheduling of his parole hearing and seeks release on parole. Because he is now on parole and does not challenge the validity of his original conviction, his appeal is moot. Fendler v. United States Bureau of Prisons, 846 F.2d 550, 555 (9th Cir. 1988); Brady v. U.S. Parole Comm'n, 600 F.2d 234, 236 (9th Cir. 1979).

He does not present an issue capable of repetition, yet evading review. In the absence of a class action, that doctrine is limited to situations where (1) the challenged action is too short in duration to be fully litigated prior to its cessation or expiration, and (2) there is a reasonable expectation that the same complaining party would be subjected to the same action again. Murphy v. Hunt, 455 U.S. 478, 482 (1982); Reimers v. State of Oregon, No. 86-4366, slip op. at 46 (9th Cir. Jan. 4, 1989) (discussing only reasonable expectation that same complaining party subject to same action again); Ward v. City of Portland & Aichele, 857 F.2d 1373 (9th Cir. 1988). Here, Roberts cannot show a reasonable expectation or demonstrated probability that he will be subjected to the parole system again. Fendler, 846 F.2d at 555; Honig v. Doe, 108 S. Ct. 592, 601 n. 6 (1988) ("must be a 'reasonable expectation' or a 'demonstrated probability' that the same controversy will recur").

Appeal dismissed.