United States v. Gonzalez-Del-Valle ( 1999 )

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<pre> [NOT FOR PUBLICATION NOT TO BE CITED AS PRECEDENT] United States Court of Appeals For the First Circuit Nos. 98-1311 98-2219 UNITED STATES, Appellee, v. FELIX J. GONZALEZ-DEL-VALLE, Defendant, Appellant. APPEALS FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO [Hon. Daniel R. Domnguez, U.S. District Judge] Before Selya, Boudin and Lynch, Circuit Judges. J. Whitfield Larrabee and Rafael Anglada-Lopez on briefs for appellant. Guillermo Gil, United States Attorney, Jorge E. Vega Pacheco, Assistant United States Attorney, Jose A. Ruiz-Santiago, Assistant United States Attorney, and Nelson Perez-Sosa, Assistant United States Attorney, on briefs for appellee. June 10, 1999 Per Curiam. Defendant-appellant Felix J. Gonzalez del Valle appeals from the district court's determination that no excess time was served on previous federal sentences and its denial of Gonzalez' request that his sentence be reduced (Appeal No. 98-2219). We have carefully reviewed the record, including the documentation of Gonzalez' prior federal sentences. We conclude that the district court did not err in declining to modify Gonzalez' sentence. On appeal, Gonzalez argues that he is entitled to thirteen months' credit for time served in excess of the sentence imposed in Case No. 88-009. This is a new argument, not raised before the district court. Therefore, the plain error standard of review applies. See United States v. Olivier- Diaz, 13 F.3d 1, 5 (1st Cir. 1993). "Where the error that defendant asserts on appeal depends upon a factual finding the defendant neglected to ask the district court to make, the error cannot be 'clear' or 'obvious' unless the desired factual finding is the only one rationally supported by the record below." Id. That standard is not met here. Gonzalez claims that his present sentence should be reduced by four months for time that he spent in a half-way house following his release on parole. The record reveals, however, that it was a condition of Gonzalez' parole that he spend the first four months of supervision residing at a half- way house. The governing statute specifically authorized such a condition. See 18 U.S.C. 4209(c)(1). Gonzalez also claims entitlement to nine months' credit for time that lapsed between the execution of the parole warrant and the revocation of his parole. No excess time was served, however. The record shows that although the actual revocation did not occur until September 1993, the total time to be served following revocation of parole was calculated starting from December 10, 1992, the date that the parole warrant was executed. Gonzalez' contention that his due process rights were violated because a revocation hearing was not held in a timely manner, even if proved, would not entitle him to receive credit with respect to the sentence he is presently serving. The harm, if any, occurred in connection with Case No. 88-009, not this case. Gonzalez' sentence is affirmed. See Loc.R. 27.1. </pre>

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Document Info

Docket Number： 98-1311

Filed Date： 6/14/1999

Precedential Status： Non-Precedential

Modified Date： 4/18/2021

Authorities (1)

United States v. Olivier-Diaz , 13 F.3d 1 ( 1993 )

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