United States v. Jose Castillo , 607 F. App'x 754 ( 2015 )

FILED
NOT FOR PUBLICATION JUN 17 2015
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 14-50341
Plaintiff - Appellee, D.C. No. 3:10-cr-05124-BEN-1
v.
MEMORANDUM*
JOSE LUIS CASTILLO,
Defendant - Appellant.
Appeal from the United States District Court
for the Southern District of California
Roger T. Benitez, District Judge, Presiding
Submitted June 5, 2015**
Pasadena, California
Before: M. SMITH and N.R. SMITH, Circuit Judges and LEFKOW,*** Senior
District Judge.
*
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).
***
The Honorable Joan Humphrey Lefkow, Senior District Judge for the
U.S. District Court for the Northern District of Illinois, sitting by designation.
Jose Luis Castillo appeals the revocation of his supervised release. Castillo
admitted that he failed to submit urine samples for drug testing, as required by the
terms of his supervised release. The district court revoked Castillo’s supervised
release and imposed a custodial sentence of six months’ imprisonment, to be
followed by a further two-year term of supervised release. On appeal, Castillo
alleges numerous constitutional challenges to the system of supervised release.
Castillo also argues that his release revocation sentence is unreasonable. We
affirm.
We have considered all of Castillo’s constitutional claims1 and conclude that
they are meritless. Castillo did not raise his constitutional claims in the district
court, so we review them for plain error. See United States v. Bell, 770 F.3d 1253,
1256 (9th Cir. 2014). Most of Castillo’s constitutional challenges are answered by
the fact, long recognized in our circuit, that a term of supervised release is part of
1
We grant Castillo’s motion to file an oversized reply brief. However, we
will not consider his claims that (1) he was not advised of the mandatory
revocation provision when entering his guilty plea; (2) 18 U.S.C. § 3583(g) is a bill
of attainder; (3) incarceration following failure to test violates the Eighth
Amendment; (4) he has a right to have counsel present during all interactions with
probation officers; (5) supervised release is an inquisitorial system; (6) § 3583(g)
functions as a general warrant; and (6) searches conducted under the umbrella of
supervised release violate the Fourth Amendment, because they were not raised in
Castillo’s opening brief. See Nisqually Indian Tribe v. Gregoire, 623 F.3d 923,
928 n.6 (9th Cir. 2010).
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the sentence imposed for the underlying offense. See United States v. Huerta-
Pimental, 445 F.3d 1220, 1225 (9th Cir. 2006). A supervised releasee is not
analogous to a criminal defendant; a releasee has been adjudged guilty and is
serving his sentence while on supervision. Therefore, a releasee, alleged to have
violated the terms of his supervised release, does not enjoy the same panoply of
rights that a criminal defendant has when facing prosecution. See United States v.
Gavilanes-Ocaranza, 772 F.3d 624, 628-29 (9th Cir. 2014) (supervised releasees
have no right to a speedy trial or trial by jury); Huerta-Pimental, 445 F.3d at 1225(revocation of supervised release by a judge does not violate the right to a jury
trial); United States v. Soto-Olivas, 44 F.3d 788, 789-90 (9th Cir. 1995) (non-
criminal conduct may support a violation of supervised release, supervised release
does not implicate double jeopardy, and releasees have no right to be indicted for
alleged violations). The supervised release system does not violate the separation
of powers. See United States v. Mejia-Sanchez, 172 F.3d 1172, 1175 (9th Cir.
1999).
We have also consistently upheld terms of supervised release identical to
Castillo’s. Conditions of supervised release may impinge upon fundamental
constitutional rights. See United States v. Kincade, 379 F.3d 813, 834 (9th Cir.
2004) (en banc). This includes the right to association. See United States v.
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Bolinger, 940 F.2d 478, 480 (9th Cir. 1991). The Fifth Amendment does not
prohibit conditions of supervised release that require a releasee to provide
information to the probation officer, see United States v. Saechao, 418 F.3d 1073,
1081 (9th Cir. 2005), including a urine sample for drug testing, United States v.
Edmo, 140 F.3d 1289, 1292-93 (9th Cir. 1998). In short, Castillo presents nothing
more than a typical release revocation case. His broadside constitutional attacks
have no validity in our precedent. Therefore, we conclude that the district court
did not err in revoking Castillo’s supervised release, pursuant to 18 U.S.C.
§ 3583(g).
We also conclude that Castillo’s release revocation sentence was reasonable.
The district court did not abuse its discretion by revoking Castillo’s supervised
release and imposing a custodial sentence, because revocation was mandated by
§ 3583(g)(3). To the extent the district court imposed a custodial sentence for
breach of trust, it followed the express recommendation of the sentencing
commission. See U.S. Sentencing Guidelines Manual ch. 7, pt. A(b), introductory
cmt. (2010); United States v. Simtob, 485 F.3d 1058, 1062 (9th Cir. 2007). The
district court did not abuse its discretion by considering the seriousness of
Castillo’s failure to comply with drug testing, because Castillo’s failure to address
his drug problem shows that he “is not only more likely to continue on that path,
4
but also has demonstrated to the court that [he] has little respect for its command.”
Simtob, 485 F.3d. at 1063. Therefore, Castillo’s revocation sentence was not
improperly based on punishment. Lastly, the imposition of a custodial sentence
was not substantively unreasonable, in light of Castillo’s mental health and drug
problems, given Castillo’s failure to comply with procedures designed to provide
him with treatment.
AFFIRMED.
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