United States v. James Hermosillo , 622 F. App'x 680 ( 2015 )

FILED
NOT FOR PUBLICATION NOV 13 2015
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 14-50211
Plaintiff - Appellee, D.C. No. 2:08-cr-00713-DSF-42
v.
MEMORANDUM*
JAMES HERMOSILLO, AKA Bones,
Defendant - Appellant.
Appeal from the United States District Court
for the Central District of California
Dale S. Fischer, District Judge, Presiding
Submitted October 21, 2015**
Pasadena, California
Before: TROTT, KLEINFELD, and CALLAHAN, Circuit Judges.
James Hermosillo (“Hermosillo”) pleaded guilty to Count One of an
indictment charging him with involvement in a conspiracy to distribute and possess
with intent to distribute a controlled substance, a violation of 21 U.S.C. §§ 846 and
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
841(a)(1), a Class B felony. On appeal, he challenges the 15-year term of
supervised release imposed by the district court, contending that the term exceeds
the statutory maximum. We have jurisdiction under 18 U.S.C. § 3472(a) and 28
U.S.C. § 1291, and we affirm.
Although Hermosillo executed a written plea agreement waiving his right to
appeal his sentence, including any term of supervised release, he waived that right
only to the extent that the term falls within the statutory maximum. Because
Hermosillo claims that the imposed term exceeds the maximum authorized by
statute, he is not precluded from bringing this appeal.1
Hermosillo objects to the imposition of a 15-year term of supervised release,
asserting that 18 U.S.C. § 3583(b) operates to set a five-year ceiling under 21
U.S.C. § 841(b)(1)(B) since § 841(b)(1)(B)’s own terms do not specify a maximum
term. Because he alleges this error for the first time on appeal, we review it for
plain error. United States v. Daniels, 760 F.3d 920, 922 (9th Cir. 2014).
Section 3583(b), the general sentencing statute, authorizes a maximum five-
year term of supervised release for a Class A or Class B felony, “[e]xcept as
otherwise provided.” 18 U.S.C. § 3583(b)(1). Section 841(b)(1)(B)(viii), the
1
In any event, “[a]n appeal waiver will not apply if . . . the sentence
violates the law.” United States v. Watson, 582 F.3d 974, 987 (9th Cir. 2009)
(quoting United States v. Bibler, 495 F.3d 621, 624 (9th Cir. 2007)).
2
penalty provision under which Hermosillo was sentenced, penalizes specific drug
offenses and provides in relevant part: “Notwithstanding section 3583 of Title 18,
any sentence imposed under this subparagraph shall . . . include a term of
supervised release of at least 4 years . . . .” The statute does not specify a
maximum term of supervised release, implying that a life term is permissible.
In an analogous context in United States v. Garcia, 112 F.3d 395 (9th Cir.
1997), we analyzed the relationship between § 3583(b) and 21 U.S.C. §
841(b)(1)(C). We held that § 841(b)(1)(C)’s specific supervised release term, as
expressed by the U.S. Sentencing Guidelines (“Sentencing Guidelines”), trumped §
3583(b)’s general maximum of three years. We applied § 841’s term because the
statute satisfied the “except as otherwise provided” exception of § 3583(b).
Garcia, 112 F.3d at 398. Later, in United States v. Barragan, 263 F.3d 919,
925–26 (9th Cir. 2001), and United States v. Ross, 338 F.3d 1054, 1057 (9th Cir.
2003), we held that a maximum life term of supervised release was permissible
under § 841(b)(1)(C), which sets a minimum term but no maximum term. Garcia,
Barragan, and Ross compel the conclusion that, like § 841(b)(1)(C), §
841(b)(1)(B) authorizes a maximum life term of supervised release that overrides
the shorter maximum terms authorized by § 3583(b).
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Hermosillo further argues that United States v. Booker, 543 U.S. 220 (2005),
rendering advisory the once mandatory Sentencing Guidelines, undercuts Garcia
and its progeny. We have considered the argument and conclude that Booker has
no effect on our reasoning in these cases.
Because the district court did not plainly err in sentencing Hermosillo to 15
years of supervised release, the sentence is AFFIRMED.
4