United States v. Julio Higuera ( 2019 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS DEC 12 2019
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 18-10472
Plaintiff-Appellee, D.C. No.
2:09-cr-00433-DLR-1
v.
JULIO JESUS HIGUERA, MEMORANDUM*
Defendant-Appellant.
Appeal from the United States District Court
for the District of Arizona
Douglas L. Rayes, District Judge, Presiding
Argued and Submitted November 12, 2019
San Francisco, California
Before: THOMAS, Chief Judge, and WARDLAW and COLLINS, Circuit Judges.
Julio Jesus Higuera appeals the district court’s order revoking his supervised
release and imposing a 20-month prison sentence. We have jurisdiction under 18
U.S.C. § 3742 and 28 U.S.C. § 1291. We affirm in part, vacate in part, and remand
for resentencing.
1. Higuera argues that his admission to the alleged violation of the
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
conditions of his supervised release was not knowing, intelligent, and voluntary
because he incorrectly believed that the maximum sentence he could receive was
12 months. We review de novo whether the admission was voluntary and for clear
error whether it was knowing and intelligent. United States v. Stocks, 104 F.3d
308, 312 (9th Cir. 1997).
We find no error under either standard. The magistrate judge expressly told
Higuera that he could receive a maximum sentence of 24 months. Higuera was
also provided with a revocation petition and accompanying packet listing the
maximum sentence as 24 months, and he stated on the record that he had read and
understood the petition. Moreover, Higuera’s attorney attested that he reviewed
with Higuera the possible term of imprisonment that could be imposed. Higuera
does not contend that his attorney provided him with incorrect information. These
facts are sufficient to support the district court’s finding that Higuera’s admission
and waiver of the revocation hearing were knowing, intelligent, and voluntary.
2. The district court plainly erred by imposing a 20-month sentence for
the purpose of allowing Higuera to participate in the Bureau of Prisons’
Residential Drug Abuse Program (RDAP). See Tapia v. United States, 564 U.S.
319, 332 (2011) (holding that the sentencing statute “precludes sentencing courts
from imposing or lengthening a prison term to promote an offender’s
rehabilitation”); United States v. Grant, 664 F.3d 276, 282 (9th Cir. 2011)
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(applying Tapia to sentences imposed for violations of supervised release
conditions).
The district court’s only explanation for its sentence was that it was intended
“to allow [Higuera] correctional treatment; in particular, the RDAP program.”
This is little different than the explanation the Supreme Court found improper in
Tapia. See Tapia, 564 U.S. at 322. Though the district court’s colloquy here was
acceptable, it erred when it justified the term of Higuera’s sentence based on his
ability to secure rehabilitative services. See id. at 335. The error affected
Higuera’s substantial rights because the district court’s improper focus on
imposing a sentence sufficiently long to allow Higuera to participate in RDAP
gives rise to a reasonable probability that he would have otherwise received a
lesser sentence. United States v. Tapia, 665 F.3d 1059, 1063 (9th Cir. 2011)
(where the district judge’s on-the-record comments confirmed that “the need to
provide treatment was one of the considerations that affect[ed] the length of the
sentence he imposed,” the defendant demonstrated “that there [was] a reasonable
probability that [he or she] would have received a different sentence but for the
district judge’s impermissible consideration of this factor” and “also demonstrated
that this error seriously affected the fairness, integrity, or public reputation of
judicial proceedings”) (internal quotation marks omitted); see also Grant, 664 F.3d
at 279, 282 (vacating, on plain error review, a sentence imposed in violation of
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Tapia). We therefore vacate the sentence and remand to the district court for
resentencing.1
AFFIRMED in part, VACATED in part, REMANDED.
1
In light of our disposition, we do not address Higuera’s argument that the
20-month sentence was substantively unreasonable.
4