United States v. Lorenzo Cordova Illuviano , 154 F. App'x 873 ( 2005 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
U.S. COURT OF APPEALS
____________________________ ELEVENTH CIRCUIT
November 18, 2005
No. 04-10418 THOMAS K. KAHN
Non-Argument Calendar CLERK
____________________________
D.C. Docket No. 03-14010-TP-KMM
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
LORENZO CORDOVA ILLUVIANO,
a. k. a. Hipolito Jaramillo-Luviano
Defendant-Appellant.
____________________________
Appeal from the United States District Court
for the Southern District of Florida
______________________________
(November 18, 2005)
Before EDMONDSON, Chief Judge, CARNES and MARCUS, Circuit Judges.
PER CURIAM:
Defendant-Appellant Lorenzo Cordova Illuviano appeals the imposition of a
term of 15 months’ imprisonment for violation of the terms of his supervised
release. No reversible error has been shown; we affirm.
Defendant was sentenced to 21 months’ imprisonment and three years’
supervised release on 7 August 2001 after he pled guilty to a federal drug
conspiracy offense in North Carolina. Defendant completed his period of
imprisonment on 5 November 2001; he was deported to Mexico on 12 December
2001.
While on supervised release, Defendant was charged with -- and pled guilty
to -- another federal drug conspiracy offense in Florida; he was sentenced to a
term of 140 months’ imprisonment and five years of supervised release for this
later offense. The drug conspiracy offense and the Defendant’s reentry into the
United States each constituted violations of the terms of Defendant’s supervised
release on the North Carolina offense. Defendant admitted to these two violations
of his supervised release conditions; supervised release was revoked. Defendant
was sentenced -- without objection -- to 15 months’ imprisonment to be served
consecutively to the sentence imposed on the Florida drug conspiracy offense.
2
For the first time, Defendant raises a Booker issue, United States v. Booker,
125 S.Ct. 738 (2005), in this appeal. Defendant appears to make a compound
Booker claim: he argues that (i) his original sentence in North Carolina was
invalid under Booker and therefore the resultant supervised release term could not
be revoked; and (ii) the sentence imposed upon revocation violated Booker
because facts were determined that were neither alleged in an indictment nor
proved to a jury beyond a reasonable doubt.
To the extent that Defendant raises a challenge to the sentence imposed for
the North Carolina offense that underlies his supervised release violation,
Defendant’s argument is without merit. As we have said, “a defendant may not
challenge, for the first time on appeal from the revocation of supervised release,
his sentence for the underlying offense.” United States v. White, 416 F.3d 1313,
1316 (11th Cir. 2005). And, in any event, Booker has no retroactive application to
cases on collateral review. Id. Our review is limited to Defendant’s claim that the
sentence imposed for violation of his supervised release was improper under
Booker. And, because Defendant raises this issue for the first time on appeal, our
review is for plain error only. United States v. Rodriguez, 398 F.3d 1291, 1298
(11th Cir.), cert. denied, 125 S.Ct. 2935 (2005).
3
Neither the Supreme Court nor this Court has yet determined in a binding
opinion that Booker applies to sentencing upon the revocation of supervised
release. See id. at 1318. But even if we were to assume the applicability of
Booker in this context, Defendant shows no Booker error. Defendant admitted
the facts used to determine his guideline range at the revocation hearing; admitted
facts support no constitutional Booker error. See United States v. Shelton, 400
F.3d 1325, 1330 (11th Cir. 2005) (no Sixth Amendment violation under Booker
when the defendant admitted to the facts that enhanced sentence). And, while we
have concluded that a district court commits statutory error under Booker when it
applies the guidelines as binding and not as advisory, see id. at 1330-31, the
guideline range for a sentence imposed upon revocation of supervised release
always has been advisory. See United States v. Cook, 291 F.3d 1297, 1301 (11th
Cir. 2002).* Defendant’s sentence was not increased under a mandatory guideline
system; no statutory Booker error, plain or otherwise, has been shown.
AFFIRMED.
*
Cook addressed a sentence imposed upon revocation of probation; violation of probation and
supervised release are treated as functionally equivalent. See U.S.S.G., Chapter 7, Part B,
Introductory Commentary.
4