After challenging his initial sentence under Johnson v. United States, 135 S. Ct. 2551 (2015), the appellant was re-sentenced to imprisonment for time served, followed by two years of supervised release to expire in April 2019.
The appellant’s challenge to his new sentence is to moot. The custodial and supervised release portions of his sentence should be treated as unitary, not separate. Thus, he can challenge his sentence even after incarceration has ceased, because he continues to serve a term of supervised release. Although the underlying prison sentence has been served, a case is not moot when an associated term of supervised release is ongoing, because on remand a district court could grant relief to the prevailing party in the form of a shorter period of supervised release.
Nevertheless, any re-sentencing error was harmless because it did not in fact affect his substantial rights. Although the district court did not explain its variance from the Guidelines range, it expressly recognized that Ketter had “over-served his time” and significantly reduced his supervised-release term for that reason.