United States v. Hernandez , 170 F. App'x 914 ( 2006 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT March 20, 2006
Charles R. Fulbruge III
Clerk
No. 05-40729
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JESUS HERNANDEZ, JR.,
Defendant-Appellee.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. 7:02-CR-434-ALL
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Before JOLLY, DAVIS, and OWEN, Circuit Judges.
PER CURIAM:*
Jesus Hernandez, Jr., appeals the sentence imposed by the
district court following the revocation of his supervised
release. Hernandez was sentenced to an eight-month term of
imprisonment and to an eight-month term of supervised release
with the special condition of community confinement and with the
additional condition that Hernandez was not to be released from
the Bureau of Prisons until there was a bed available for him at
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
No. 05-40729
-2-
a halfway house. For the reasons set forth below, we VACATE and
REMAND.
Hernandez first contends that the district court was without
authority to sentence him to community confinement as a condition
of supervised release. He argues that the imposition of
community confinement as a condition of supervised release is not
permitted under the plain language of the governing statutes, 18
U.S.C. § 3563(b) and § 3583(d).
This court recently rejected a similar argument and
determined that a district court has authority to impose
confinement in a community corrections facility as a condition of
supervised release. See United States v. Del Barrio, 427 F.3d
280, 283-84 (5th Cir. 2005). Del Barrio controls this issue and
Hernandez is not entitled to relief.
Hernandez also contends that the district court was not
authorized to impose as a condition of supervised release that he
not be released from the Bureau of Prisons until a bed was
available to him at a halfway house. He argues that such a
condition converts his eight-month of imprisonment into an
indefinite, conditional prison sentence and violates both 18
U.S.C. § 3624(a) and his rights under the Due Process Clause.
Hernandez requests that the condition requiring him to remain in
the custody of the Bureau of Prisons until a bed is available at
a halfway house be vacated.
No. 05-40729
-3-
Inmate records reflect that Hernandez was released from the
Bureau of Prisons on December 12, 2005. Nevertheless,
Hernandez’s appeal is not moot, because there is a possibility
that the district court may alter Hernandez’s period of
supervised release pursuant to 18 U.S.C. § 3583(e)(2), if it
determines that he has served excess prison time. See Johnson v.
Pettiford, ___ F.3d ___, 2006 WL ________ (5th Cir. March 14,
2006). Accordingly, the judgment of the district court is
VACATED and this case is REMANDED to the district court for
further proceedings consistent with this opinion.
VACATED and REMANDED.