United States v. Villasenor, Arturo , 256 F. App'x 842 ( 2007 )

NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with
Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Argued November 14, 2007
Decided December 7, 2007
Before
Hon. RICHARD A. POSNER, Circuit Judge
Hon. DIANE P. WOOD, Circuit Judge
Hon. ANN CLAIRE WILLIAMS, Circuit Judge
Nos. 06-4084 & 06-4086
UNITED STATES OF AMERICA, Appeals from the United States
Plaintiff-Appellee, District Court for the Northern
District of Illinois, Eastern Division
v.
Nos. 98 CR 25-1 & 06 CR 127-1
ARTURO VILLASENOR,
Defendant-Appellant. George W. Lindberg,
Judge.
ORDER
Arturo Villasenor, an undocumented alien, pleaded guilty to one count of
reentering the United States illegally, in violation of 8 U.S.C. § 1326(a), (b)(1). In
his written plea agreement, he also admitted that his illegal reentry violated the
terms of his supervised release, which was part of a sentence for a prior conviction
of illegal reentry. The district court ordered him to serve consecutive prison
terms—a 16-month sentence for the illegal reentry and a 14-month sentence for the
violation of his supervised release. Villasenor challenges these sentences, arguing
that the district court was required to order concurrent prison terms. We affirm.
Villasenor, a citizen of Mexico, has a history of bouncing between Mexico and
the United States. In 1993, he was convicted of selling false identification
documents. After serving some time for that, he was removed from the United
Nos. 06-4084 & 06-4086 Page 2
States in July 1996, but he returned before December 1997. In 1998, he was
charged with illegal reentry after deportation. Soon thereafter, however, he became
seriously ill and underwent heart surgery. As a result, he did not enter a guilty plea
until June 2002. He was sentenced to 24 months’ imprisonment to be followed by 3
years’ supervised release. In September 2004, after his release from prison, he was
removed again to Mexico, and again he returned to the United States, this time
within a matter of days.
The authorities caught up with him in January 2006, when Villasenor was
arrested pursuant to a bench warrant for violating the terms of his supervised
release. At that point, the government pursued two alternatives: first, it moved for
a rule to show cause why Villasenor’s supervised release on his 2002 conviction
should not be revoked; and second, it indicted him on a new count of reentering the
United States after being removed, in violation of 8 U.S.C. § 1326(a), (b)(1).
Villasenor pleaded guilty to the latter offense. In the written plea agreement,
Villasenor stipulated that his illegal reentry also violated the terms of his 2002
supervised release. Villasenor and the government agreed to the applicable
guidelines range for the charged offense and the supervised-release violation, but
they disagreed over how the sentences should be structured. The government took
the position that the prison terms should run consecutively pursuant to U.S.S.G.
§ 7B1.3(f), whereas Villasenor argued that the sentences should run concurrently.
Villasenor acknowledged the relevant statutes capped his sentence at 12 years’
imprisonment—two years for his supervised-release violation and 10 years for his
illegal-reentry offense.
The district court sentenced Villasenor to consecutive prison terms of 16
months for illegal reentry and 14 months for the supervised-release violation; both
sentences were within their respective guidelines ranges. In determining the
appropriate sentence, the court took into account the factors set forth in 18 U.S.C.
§ 3553(a) and stressed in particular Villasenor’s need for medical care on the one
hand, and his recidivism on the other.
Villasenor raises two related arguments on appeal. First, he argues that the
district court erred by ordering consecutive sentences because, he claims, the
supervised-release violation involved the same conduct as the underlying offense
and because U.S.S.G. § 5G1.3(b) provides that sentences for offenses that involve
relevant conduct should run concurrently. Second, he argues that imposing a
consecutive sentence for relevant conduct violates his right to be put in jeopardy
only once for each offense. Both of these arguments lack merit.
Although there had been some dispute about whether, after United States v.
Booker, 543 U.S. 220 (2005), we would review a sentence imposed after revocation of
supervised release under a “reasonable” or “plainly unreasonable” standard, see
Nos. 06-4084 & 06-4086 Page 3
United States v. Flagg, 481 F.3d 946, 949 (7th Cir. 2007) (reserving the question),
we recently determined that the “plainly unreasonable” standard continues to
apply. See United States v. Kizeart, No. 07-1397, 2007 WL 2938374, at *2 (7th Cir.
Oct. 10, 2007). This standard is one of the narrowest known, similar to that which
applies to sanctions imposed by prison disciplinary boards requiring the support of
only “some” evidence to be upheld. Id. at *3 (collecting cases).
Villasenor contends that his sentence for the supervised-release violation
should run concurrently with his sentence for the underlying offense because they
were based on the same relevant conduct—his illegal reentry into the United
States. But we have already rejected this argument and have held that it is not
plainly unreasonable for a district court to impose consecutive sentences. See
United States v. Huusko, 275 F.3d 600, 603 (7th Cir. 2001); United States v. Harvey,
232 F.3d 585, 588-89 (7th Cir. 2000). Indeed, the sentencing guidelines recommend
that the district court order such sentences to run consecutively “whether or not
th[at] sentence . . . resulted from the conduct that is the basis of the revocation.”
U.S.S.G. § 7B1.3(f). The guidelines commentary further specifies that “any sentence
of imprisonment for a criminal offense that is imposed after revocation
of . . . supervised release be run consecutively to any term of imprisonment imposed
upon revocation.” U.S.S.G. § 7B1.3 cmt. n.4.
Villasenor cites U.S.S.G. § 5G1.3(b) as support for his argument that
sentences addressing the same relevant conduct should run concurrently. But he
ignores the guidelines’ commentary, which explicitly provides that U.S.S.G.
§ 5G1.3(c)—not § 5G1.3(b)—applies when a defendant commits an offense while on
supervised release. The commentary to § 5G1.3(c) is explicit that sentences may run
consecutively. See U.S.S.G. § 5G1.3 cmt. n.3(C). The commentary also cross-
references U.S.S.G. § 7B1.3(f) and Application Note 4, and recommends “that the
sentence for the instant offense be imposed consecutively to the sentence imposed
for the revocation.” Id. Moreover, in a case factually indistinguishable from this one,
the Tenth Circuit rejected the argument that Villasenor advances here and upheld
the defendant’s consecutive sentences. See United States v. Contreras-Martinez, 409
F.3d 1236, 1239-1241 (10th Cir. 2005).
Villasenor’s argument that his sentences violate the Double Jeopardy Clause
fares no better. Because he did not raise this argument in the district court, we
review it for plain error only. See United States v. Wyatt, 102 F.3d 241, 244 (7th Cir.
1996). There has been no error here—let alone a plain one—because we have
already rejected Villasenor’s argument. See id. at 244-45. Supervised release is part
of a defendant’s original sentence; when a defendant violates the terms of
supervised release, it is the defendant’s breach of trust in failing to abide by those
terms that is sanctioned. See id. at 245; see also Huusko, 275 F.3d at 603. A
revocation of supervised release only modifies the terms of the original sentence; it
Nos. 06-4084 & 06-4086 Page 4
is not punishment for the conduct that triggered the revocation. See Wyatt, 102 F.3d
at 245. If a defendant is also sentenced for the underlying offense, this punishment
does not run afoul of the Double Jeopardy Clause. See id. Indeed, as the Supreme
Court pointed out in Missouri v. Hunter, 459 U.S. 359 (1983), “[w]here . . . a
legislature specifically authorizes cumulative punishment under two statutes,
regardless of whether those two statutes proscribe the “same” conduct . . . a court’s
task of statutory construction is at an end and the prosecutor may seek and the
trial court or jury may impose cumulative punishment under such statutes in a
single trial.” Id. at 368-69.
Villasenor further contends that the district court should not have relied on
the same factors to determine both sentences, but the same considerations—all
specified in 18 U.S.C. § 3553(a)—are relevant to both sentences. He also faults the
district court for failing to find specifically that he breached the public trust when
he violated his supervised release, but we have never held that a sentencing court
must make such an express finding in order to impose a sentence after a violation of
supervised release.
Finally, in his reply brief Villasenor appears to argue that his supervised
release was never revoked because the government never filed a petition to revoke
it but instead sought the revocation in a Motion for Rule to Show Cause. Even if an
argument that an appellant raises for the first time in the reply brief were not
waived, which it is, see United States v. Dabney, 498 F.3d 455, 460 (7th Cir. 2007),
this argument is easily rejected. The district court plainly told Villasenor that it
was revoking his supervised release, and the final judgment shows that Villasenor’s
supervised release indeed was revoked.
AFFIRMED.