United States v. Gonzalez ( 2001 )

REVISED - June 12, 2001
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
____________________
No. 00-40572
____________________
UNITED STATES OF AMERICA
Plaintiff - Appellee
v.
MODESTO GONZALEZ
Defendant - Appellant
_________________________________________________________________
Appeal from the United States District Court
for the Southern District of Texas
_________________________________________________________________
May 3, 2001
Before KING, Chief Judge, and ALDISERT* and BENAVIDES, Circuit
Judges.
KING, Chief Judge:
Defendant-Appellant Modesto Gonzalez appeals from the
district court’s imposition of three consecutive terms of
imprisonment following the revocation of his concurrent terms of
supervised release. For the following reasons, we AFFIRM.
I. FACTUAL AND PROCEDURAL BACKGROUND
*
Circuit Judge of the Third Circuit, sitting by
designation.
On November 21, 1997, pursuant to a plea agreement,
Defendant-Appellant Modesto Gonzalez pleaded guilty to three
counts of impersonating an officer or employee of the United
States, in violation of 18 U.S.C. § 912. On January 29, 1998,
the district court sentenced Gonzalez to serve three concurrent
terms of twenty-seven months in prison and, thereafter, to
continue his sentence by serving three concurrent terms of twelve
months supervised release.
Gonzalez was released from prison on November 19, 1999, and
began his concurrent terms of supervised release. On April 21,
2000, the U.S. Probation Office filed a superseding1 Petition for
Warrant for Offender Under Supervision, alleging another
violation of 18 U.S.C. § 912, together with charges of assault
and leaving the Southern District of Texas without permission.
On May 22, 2000, the district court held a hearing on the
superseding petition. At the hearing, Gonzalez stood silent to
each allegation, but pleaded true to the charge of leaving the
jurisdiction without permission. Following the testimony of one
witness and the submission of affidavits from other witnesses,
the district court concluded that the allegations in the petition
were true, revoked Gonzalez’s three terms of supervised release,
and sentenced Gonzalez to three consecutive twelve-month terms of
imprisonment.
1
The original petition was filed on March 31, 2000.
2
Gonzalez timely appealed, challenging the propriety of the
consecutive sentences, together with the district court’s alleged
failures to consider certain sentencing factors and to state in
open court its reasoning for the sentences.
II. STANDARD OF REVIEW
This court “will uphold a sentence unless it (1) was imposed
in violation of law, (2) resulted from an incorrect application
of the guidelines, (3) was outside the guideline range and is
unreasonable, or (4) was imposed for an offense for which there
is no applicable sentencing guideline and is plainly
unreasonable.” United States v. Pena, 125 F.3d 285, 286 (5th
Cir. 1997) (internal quotations omitted) (quoting United States
v. Teran, 98 F.3d 831, 836 (5th Cir. 1996)); see also United
States v. Deavours, 219 F.3d 400, 402 (5th Cir. 2000). Because
there are no applicable guidelines for sentencing after
revocation of supervised release, see U.S. SENTENCING GUIDELINES
MANUAL ch. 7, pt. A, cmt. 1 (“At this time, the Commission has
chosen to promulgate policy statements only.”), this court will
uphold a sentence unless it is in violation of the law or plainly
unreasonable. See United States v. Stiefel, 207 F.3d 256, 259
(5th Cir. 2000); Pena, 125 F.3d at 287. In making this
determination, the court reviews de novo the district court’s
interpretation of the sentencing statutes. See United States v.
3
Teran, 98 F.3d 831, 835 (5th Cir. 1996); United States v.
Mathena, 23 F.3d 87, 89 (5th Cir. 1994).
III. THE IMPOSITION OF CONSECUTIVE SENTENCES UPON REVOCATION
OF CONCURRENT TERMS OF SUPERVISED RELEASE
Gonzalez contends that the district court’s revocation of
his terms of supervised release and its imposition of three
consecutive terms of imprisonment resulted in a sentence that
violates the law and is plainly unreasonable. Relying upon
language in United States v. Bachynsky, 934 F.2d 1349, 1353 (5th
Cir. 1991) (en banc), overruling on other grounds recognized by
United States v. Watch, 7 F.3d 422 (5th Cir. 1993), that “prison
terms following revocation of supervised release are served
concurrently,” Gonzalez asserts that the consecutive sentences
should be vacated.
Gonzalez also argues that the relevant statutes, 18 U.S.C.
§§ 3624(e)2 and 3583(e)(3),3 should be interpreted to preclude
2
Section 3624(e), entitled “Supervision after release,”
states in relevant part:
A prisoner whose sentence includes a term of supervised
release after imprisonment shall be released by the
Bureau of Prisons to the supervision of a probation
officer who shall, during the term imposed, supervise
the person released to the degree warranted by the
conditions specified by the sentencing court. The term
of supervised release commences on the day the person
is released from imprisonment and runs concurrently
with any Federal, State, or local term of probation or
supervised release or parole for another offense to
which the person is subject or becomes subject during
the term of supervised release.
4
consecutive prison sentences after revocation of concurrent terms
of supervised release. The Government responds that, under 18
U.S.C. § 3584(a),4 the district court had the authority and the
discretion to impose consecutive sentences upon the revocation of
Gonzalez’s concurrent terms of supervised release. We agree.
18 U.S.C. § 3624(e) (2000).
3
Section 3583(e)(3), entitled “Modification of
conditions or revocation,” provides:
The court may, after considering the factors set forth
in section 3553(a)(1), (a)(2)(B), (a)(2)(C), (a)(4),
and (a)(6)—
. . . .
revoke a term of supervised release, and require the
defendant to serve in prison all or part of the term of
supervised release without credit for time previously
served on postrelease supervision, if the court,
pursuant to the Federal Rules of Criminal Procedure
applicable to revocation of probation or supervised
release, finds by a preponderance of the evidence that
the defendant violated a condition of supervised
release, except that a defendant whose term is revoked
under this paragraph may not be required to serve more
than 5 years in prison if the offense that resulted in
the term of supervised release is a class A felony,
more than 3 years in prison if such offense is a class
B felony, more than 2 years in prison if such offense
is a class C or D felony, or more than one year in any
other case[.]
18 U.S.C. § 3583(e)(3) (2000).
4
Section 3584(a), dealing with multiple sentences of
imprisonment, provides in relevant part:
If multiple terms of imprisonment are imposed on a
defendant at the same time, or if a term of
imprisonment is imposed on a defendant who is already
subject to an undischarged term of imprisonment, the
terms may run concurrently or consecutively[.]
18 U.S.C. § 3584(a) (2000).
5
Addressing first Gonzalez’s reliance upon the language
contained within Bachynsky, we note that the court’s statement
that “prison terms following revocation of supervised release are
served concurrently” was not dispositive language in that case.5
See 934 F.2d at 1253. Indeed, the Bachynsky decision did not
concern the revocation of terms of supervised release. Instead,
the court in that case was posing a hypothetical to demonstrate
that the district court’s failure to admonish the defendant
regarding the effect of a term of supervised release did not
affect the defendant’s substantial rights. The court concluded
that the district court’s failure was harmless because,
“assum[ing] arguendo” the “‘worst case’ hypothesis,” Bachynsky’s
sentence would still be less than the statutory maximum, and
therefore, Bachynsky’s substantial rights were not affected. See
id. Accordingly, while the language in Bachynsky may be
considered persuasive authority, it does not control our
resolution of the issue on appeal. See Ayoub v. INS, 222 F.3d
214, 215 (5th Cir. 2000) (“Dictum can be persuasive authority.”);
Soc’y of Separationists, Inc. v. Herman, 939 F.2d 1207, 1211 (5th
Cir. 1991) (“Dicta, however, is persuasive authority only, and is
not binding.”). Instead, we join the Courts of Appeals for the
Fourth, Eighth, Ninth, Tenth, and Eleventh Circuits and conclude
that the district court was well within its authority under
5
Gonzalez’s counsel conceded this point at oral argument,
referring to the language as “dicta with teeth.”
6
§ 3584 to impose consecutive sentences upon its revocation of
Gonzalez’s concurrent terms of supervised release. See United
States v. Rose, 185 F.3d 1108, 1110 (10th Cir. 1999); United
States v. Jackson, 176 F.3d 1175, 1178 (9th Cir. 1999); United
States v. Johnson, 138 F.3d 115, 118 (4th Cir. 1998); United
States v. Quinones, 136 F.3d 1293, 1294-95 (11th Cir. 1998);
United States v. Cotroneo, 89 F.3d 510, 513 (8th Cir.), cert.
denied, 519 U.S. 1018 (1996).
Regarding Gonzalez’s statutory arguments, he contends that
because § 3624(e)6 requires that multiple terms of supervised
release run concurrently, the prison sentences imposed upon
revocation of those supervised release terms should also run
concurrently. We note, however, that there is no case law or
statutory support for Gonzalez’s assertion that the wording of
§ 3624(e) requires terms of imprisonment following revocation of
concurrent terms of supervised release to run concurrently. By
its terms, § 3624(e) deals solely with the imposition of
supervised release, not the imposition of sentences following its
revocation. See 18 U.S.C. § 3624(e) (providing that a term of
supervised release “commences on the day the person is released
from imprisonment” and is to run concurrently with any other term
of supervised release); see also Johnson, 138 F.3d at 118;
Cotroneo, 89 F.3d at 513. Therefore, the district court was
6
Refer to supra note 2.
7
correct in relying upon § 3584 to determine whether the resulting
multiple terms of imprisonment were to be served concurrently or
consecutively. See id. § 3584(a); see also Jackson, 176 F.3d at
1178; Johnson, 138 F.3d at 118 (determining that § 3584 controls
the imposition of multiple sentences following revocation of
terms of supervised release); Quinones, 136 F.3d at 1294-95;
Cotroneo, 89 F.3d at 512 (“The decision to impose a consecutive
or concurrent sentence upon revocation of supervised release is
committed to the sound discretion of the district court.”).
Next, Gonzalez argues that the district court’s power to
alter the concurrent nature of simultaneously imposed supervised
release terms is “[s]ignificantly missing” from the list of the
court’s powers in § 3583(e)(3)7 and that the same subsection
narrows the district court’s discretion in sentencing supervised
release terms. We disagree. First, we conclude that the
district court “acted within the confines of . . . § 3583(e)(3)
[by] revok[ing Gonzalez]’s term of supervised release.”
Quinones, 136 F.3d at 1295. Furthermore, Gonzalez was originally
convicted of three class E felonies and was initially sentenced
to multiple terms of supervised release. As noted, however,
Gonzalez argues that the limiting language contained within
subsection (e)(3), that “a defendant may not be required to serve
. . . more than one year in any other case[, e.g., a class E
7
Refer to supra note 3.
8
felony,]” 18 U.S.C. § 3583(e)(3), means that the district court
could sentence him to a maximum of only one year. We believe
that § 3583(e)(3) does not limit to only one year Gonzalez’s
total time of imprisonment upon revocation of multiple terms of
supervised release. See Jackson, 176 F.3d at 1177-78 (rejecting
the defendant’s argument that the language in § 3583(e) limits
the amount of time that a defendant may spend in prison following
a revocation of supervised release). Instead, “a close reading
of the statute” reveals that the limiting language “refers to
[the district court’s discretion upon revocation of a term of
supervised release] to go beyond the original supervised release
term, capping the term of incarceration to the class of felony
originally committed.” Id. at 1178. Accordingly, because
Gonzalez had three such terms of supervised release, the district
court was within its authority to “revoke [the three terms] and
sentence [Gonzalez] to a term of imprisonment for each
violation.” Quinones, 136 F.3d at 1295; see also Cotroneo, 89
F.3d at 513 (interpreting § 3583(e)(3) and stating that “the
District Court acted properly . . . in sentencing Cotroneo to two
years of imprisonment for the credit card fraud conviction and
two years of imprisonment for the escape conviction”). The
district court was correct in then turning to § 3584(a) to
determine whether those terms of imprisonment should be served
concurrently or consecutively. See Rose, 185 F.3d at 1110;
9
Jackson, 176 F.3d at 1178; Johnson, 138 F.3d at 119; Quinones,
136 F.3d at 1295; Cotroneo, 89 F.3d at 513.
Gonzalez contends, however, that § 3584(a) does not apply to
sentences of imprisonment following revocation of terms of
supervised release. We conclude that § 3584(a) is not limited to
only those terms of imprisonment imposed after the initial
guilt/innocence phase of the proceeding. See 18 U.S.C.
§ 3584(a); see also Johnson, 138 F.3d at 118; Quinones, 136 F.3d
at 1294 (concluding that § 3584(a) “does not exclude from its
operation the imposition of imprisonment terms following the
revocation of terms of supervised release”); Cotroneo, 89 F.3d at
513. Instead, the section explicitly addresses the imposition of
concurrent or consecutive sentences in the situation of multiple
sentences of imprisonment (such as those that result after the
revocation of multiple terms of supervised release), and there is
no indication that § 3584(a) should not apply to sentencing
following the revocation of multiple terms of supervised release.
See 18 U.S.C. §§ 3584(a), 3583(e)(3), 3624(e); see also Quinones,
136 F.3d at 1294-95.
Gonzalez also asserts that § 3584(a) is inapplicable because
supervised release is not a “sentence of imprisonment”; rather,
it is a form of “post-imprisonment supervision.” To the
contrary, supervised release, while a form of post-imprisonment
supervision, is still considered to be a component of the
defendant’s total sentence. See 18 U.S.C. § 3583(a) (2000)
10
(providing that “[t]he court, in imposing a sentence . . . , may
include as a part of the sentence a requirement that the
defendant be placed on a term of supervised release after
imprisonment” (emphasis added)); id. § 3624(e) (referring to “[a]
prisoner whose sentence includes a term of supervised release
after imprisonment” (emphasis added)); United States v. Benbrook,
119 F.3d 338, 341 n.10 (5th Cir. 1997) (“A period of supervised
release is a part of the defendant’s sentence.”). Also,
Gonzalez’s contention is inapposite because once a term of
supervised release is revoked, the district court is then dealing
with a “term of imprisonment,” thus triggering § 3584(a).
Finally, simply as a matter of statutory construction, 18 U.S.C.
§ 3551(b)(3), which provides for general sentencing provisions,
vests the court with authority to impose “a term of imprisonment
as authorized by subchapter D.” Id. (emphasis added).
Subchapter D encompasses § 3581 to § 3584, which include § 3583,
concerning revocation of a term of supervised release. As such,
the provisions regarding terms of imprisonment include the
provision regarding revocation of supervised release and should
be read together in pari materia.
Lastly, Gonzalez argues that § 3583(e)(3) is ambiguous,
asking this court to apply the rule of lenity in favor of
concurrent terms. As Gonzalez concedes, the rule of lenity
applies only when a statute is ambiguous. See United States v.
Zavala-Sustaita, 214 F.3d 601, 604 (5th Cir.), cert. denied, 121
11
S. Ct. 434 (2000); United States v. Cyprian, 197 F.3d 736, 739-40
(5th Cir. 1999), cert. denied, 121 S. Ct. 65 (2000). Moreover,
the rule of lenity is a narrow rule that “applies only when ‘a
reasonable doubt persists about a statute’s intended scope even
after resort to the language and structure, legislative history,
and motivating policies of the statute.’” Zavala-Sustaita, 214
F.3d at 608 n.11; see also United States v. Marek, 238 F.3d 310,
322 (5th Cir. 2001). Based upon the preceding analysis, we
conclude that the meaning of § 3583(e)(3) is unambiguous. As
such, the rule of lenity is inapplicable in this case.8
In sum, after canvassing our sister circuits’ analyses of
the propriety of consecutive sentences upon revocation of
concurrent terms of supervised release, and after our own
independent review of the statutory sections relevant to this
inquiry, we conclude that the district court was within its
authority to impose consecutive terms of imprisonment following
the revocation of Gonzalez’s three concurrent terms of supervised
release.
8
We also reject Gonzalez’s contention that the policy
statements in chapter seven of the Sentencing Guidelines should
be read to preclude consecutive sentencing. “These policy
statements . . . say nothing about concurrence or
consecutiveness.” Quinones, 136 F.3d at 1295. Thus, “[t]his
silence leaves intact the district court’s statutory discretion.”
Id.
12
IV. CONSIDERATION OF THE 18 U.S.C. § 3553(a) SENTENCING FACTORS
AND THE DISTRICT COURT’S REASONS BEHIND ITS IMPOSITION OF
CONSECUTIVE PRISON TERMS
Gonzalez argues alternatively that in exercising its
discretion under 18 U.S.C. § 3584(a), the district court was
required to consider the factors contained in 18 U.S.C.
§ 3553(a).9 See 18 U.S.C. §§ 3583(e), 3584(b). Furthermore,
9
Pursuant to § 3583(e), when imposing a sentence upon
revocation of supervised release, the district court is to turn
to the factors of § 3553(a), which provides in relevant part:
(a) Factors to be considered in imposing a sentence.—
. . . . The court, in determining the particular
sentence to be imposed, shall consider—
(1) the nature and circumstances of the offense and
the history and characteristics of the defendant;
(2) the need for the sentence imposed—
. . . .
(B) to afford adequate deterrence to criminal
conduct;
(C) to protect the public from further crimes of
the defendant; and
(D) to provide the defendant with needed
educational or vocational training, medical care,
or other correctional treatment in the most
effective manner;
. . . .
(4) the kinds of sentence and the sentencing range
established for—
. . . .
(B) in the case of a violation of probation or
supervised release, the applicable guidelines or
policy statements issued by the Sentencing
Commission . . .
(5) any pertinent policy statement issued by the
Sentencing Commission . . .
(6) the need to avoid unwarranted sentence
disparities among defendants with similar records
who have been found guilty of similar conduct[.]
13
Gonzalez asserts that the district court did not state in open
court its reasons for imposing the consecutive sentences, in
violation of 18 U.S.C. § 3553(c).
After finding that a defendant has violated a condition of
supervised release, the district court must consider the factors
contained in 18 U.S.C. § 3553(a) in determining the sentence to
be imposed. See United States v. Teran, 98 F.3d 831, 836 (5th
Cir. 1996); see also United States v. Pena, 125 F.3d 285, 286
(5th Cir. 1997). “Implicit consideration of the § 3553 factors
is sufficient.” Teran, 98 F.3d at 836; see also United States v.
Izaguirre-Losoya, 219 F.3d 437, 440 (5th Cir. 2000), cert.
denied, 121 S. Ct. 827 (2001). In United States v. Izaguirre-
Losoya, the district court failed to make a statement on the
record from which consideration of the § 3553(a) factors could
have been inferred; still, the court concluded that “[a]bsent a
contrary indication in the record, such evidence [that the
district court considered the Presentence Report and arguments of
defense counsel] implies that the district court was aware of and
considered the § 3553(a) factors.” 219 F.3d at 440. “This
approach is based on the presumption that district courts know
the applicable law and apply it correctly [and also] on the
belief that ‘Congress never intended . . . for sentencing to
become a hyper-technical exercise devoid of common sense.’” Id.
18 U.S.C. § 3553(a) (2000); see also 18 U.S.C. § 3583(e).
14
(second alteration in original) (footnote omitted) (quoting
United States v. Johnson, 138 F.3d 115, 119 (4th Cir. 1998)).
After our review of the sentencing transcript, we conclude
that the district court implicitly considered the § 3553(a)
factors in sentencing Gonzalez. At the hearing, the district
court observed that Gonzalez “doesn’t do well on supervised
release” and that it did not “see much point in putting Probation
out to keep track of the next run of offenses.” Moreover,
because the district court wished to impose the maximum sentence
upon the revocation of Gonzalez’s supervised release terms, it
and both parties’ counsel went to considerable lengths to
determine whether consecutive terms were proper. Furthermore, we
note that the district court judge presiding over Gonzalez’s
sentencing after revocation of supervised release was the same
judge who imposed the initial sentence. At the initial
sentencing hearing, the district court explicitly considered
Gonzalez’s history, the need to protect the public, and the need
for deterrence. In conclusion, after our review of the record,
we find no “contrary indication” that would lead us to believe
that the district court did not apply the applicable law
correctly, such to render Gonzalez’s sentence plainly
unreasonable. See Izaguirre-Losoya, 219 F.3d at 440; United
States v. Stiefel, 207 F.3d 256, 259 (5th Cir. 2000); Pena, 125
F.3d at 287.
15
Regarding the district court’s failure to state the reasons
for Gonzalez’s sentence in open court, Gonzalez admits that he
did not object at the time of sentencing, perhaps because the
court’s reasons were perfectly clear to all present. However, we
review this claimed error for plain error only. See Izaguirre-
Losoya, 219 F.3d at 441.10 Gonzalez argues that the district
court’s failure to state its reasoning on the record impaired his
substantial rights, and therefore, he asserts that his sentence
must be vacated.
18 U.S.C. § 3553(c) requires that “[t]he court, at the time
of sentencing, . . . state in open court the reasons for its
imposition of the particular sentence.” 18 U.S.C. § 3553(c). In
Izaguirre-Losoya, this court concluded that, even assuming under
the plain error standard that the district court’s failure to
state its reasoning in open court was an error that was clear or
obvious, the defendant had not shown that his substantial rights
10
Under the plain error standard,
we may correct forfeited errors only if (1) there is an
error, (2) that is clear or obvious, and (3) that
affects [the defendant’s] substantial rights. Even if
those factors are met, however, correction of the error
is discretionary and this court will not exercise that
discretion unless the error seriously affects the
fairness, integrity, or public reputation of judicial
proceedings.
Izaguirre- Losoya, 219 F.3d at 441 (internal quotations and
footnotes omitted) (alteration in original) (quoting United
States v. Ferguson, 211 F.3d 878, 886 (5th Cir.), cert. denied,
121 S. Ct. 258 (2000)).
16
had been affected. See 219 F.3d at 441. The Izaguirre-Losoya
court explained that because the district court was within its
discretion to impose consecutive sentences given the defendant’s
criminal background and because the parties informed the court of
the reasons for and against consecutive sentencing, “the sentence
imposed was supported by the record and not contrary to law.”
Id. Therefore, the court concluded that the defendant’s
substantial rights were not affected. See id. at 442; cf. United
States v. Zanghi, 209 F.3d 1201, 1204 (10th Cir. 2000)
(concluding, under an abuse of discretion standard, that the
court need not make particularized findings on each factor).
Gonzalez has failed to demonstrate that any alleged error on
the part of the district court affected his substantial rights.
As our discussion in Part III supra indicates, the district court
was not required to impose a concurrent sentence and was within
its discretion to impose consecutive sentences. The district
court and the parties extensively discussed the propriety of
imposing consecutive sentences. The record demonstrates that
substantial effort went into ensuring that Gonzalez’s sentence
was appropriate, considering his criminal history and the
district court’s belief that Gonzalez would repeat the offense.
Moreover, as we noted above, the same district court judge
presided over the revocation hearing and the original sentencing
hearing and was well aware of Gonzalez’s criminal background.
17
Accordingly, even assuming that there was error and it was
plain, we conclude that the total sentence imposed did not affect
Gonzalez’s substantial rights because Gonzalez’s sentence is
supported by the record and is not contrary to law. Furthermore,
any alleged failure by the district court does not rise to the
level of “seriously affect[ing] the fairness, integrity, or
public reputation of judicial proceedings.” Izaguirre-Losoya,
219 F.3d at 441.
V. CONCLUSION
For the foregoing reasons, we AFFIRM the consecutive terms
of imprisonment imposed by the district court after its
revocation of Gonzalez’s concurrent terms of supervised release.
18