United States v. Irma Reyes-Solosa , 761 F.3d 972 ( 2014 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 13-50404
Plaintiff-Appellee,
D.C. No.
v. 3:11-cr-04061-GT-1
IRMA REYES-SOLOSA,
Defendant-Appellant. OPINION
Appeal from the United States District Court
for the Southern District of California
Gordon Thompson, Senior District Judge, Presiding
Argued and Submitted
June 5, 2014—Pasadena, California
Filed July 30, 2014
Before: Ronald M. Gould and N.R. Smith, Circuit Judges,
and Morrison C. England, Jr., Chief District Judge.*
Opinion by Judge Gould
*
The Honorable Morrison C. England, Jr., Chief District Judge for the
U.S. District Court for the Eastern District of California, sitting by
designation.
2 UNITED STATES V. REYES-SOLOSA
SUMMARY**
Criminal Law
The panel affirmed a post-revocation sentence imposed
consecutively to the defendant’s criminal sentence for illegal
reentry.
The defendant contended that the district court’s
continuance of her revocation hearing for about three weeks
until after she was sentenced in her criminal case was
erroneous because she requested and was denied immediate
revocation sentencing.
Because Fed. R. Crim. P. 32.1(b)(2) covers post-
revocation sentencing procedures and has a timing provision,
the panel did not look to Fed. R. Crim. P. 32 in assessing
whether the revocation sentencing was timely.
The panel held that a district court can continue post-
revocation sentencing for a reasonable time to consider a
supervised releasee’s sentence in the underlying criminal
proceeding as part of evaluating the supervised release
releasee’s breach of trust, and that the approximately three-
week continuance was not unreasonable under Rule 32.1
The panel concluded that the twelve-month post-
revocation sentence is not substantively unreasonable.
**
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
UNITED STATES V. REYES-SOLOSA 3
COUNSEL
Rory T. McHale, Federal Defenders of San Diego, San Diego,
California, for Defendant-Appellant.
Jason M. Wandel (argued), Special Assistant United States
Attorney; Laura E. Duffy, United States Attorney; Bruce R.
Castetter, Assistant United States Attorney, San Diego,
California, for Plaintiff-Appellee.
OPINION
GOULD, Circuit Judge:
Irma Reyes-Solosa appeals her twelve-month post-
revocation sentence imposed consecutively to her six-month
criminal sentence for illegal reentry in violation of 8 U.S.C.
§ 1326. The district court continued Reyes-Solosa’s
revocation hearing for about three weeks until after she was
sentenced in her criminal case. Reyes-Solosa contends that
the district court’s continuance was in error because she
requested and was denied immediate revocation sentencing.
She also challenges the substantive reasonableness of her
twelve-month post-revocation sentence. We have jurisdiction
under 28 U.S.C. § 1291, and we affirm.
I
On May 8, 2013, border patrol agents found Reyes-Solosa
near the Calexico West Port of Entry in California. After
Reyes-Solosa said that she was a citizen of Mexico and did
not have documentation allowing her to be in the United
States, the agents arrested her. On June 6, 2013, Reyes-
4 UNITED STATES V. REYES-SOLOSA
Solosa was charged with violating the terms of her supervised
release by illegally reentering the United States in violation
of 8 U.S.C. § 1326.
At Reyes-Solosa’s revocation hearing on July 24, 2013,
the district court said that it would continue the hearing until
after Reyes-Solosa was sentenced in her criminal case: “I
intend [to] continue the matter until after August the 8th
because the sentence that I impose will be consecutive.
Without doing that, I would have nothing with which to make
it consecutive.” The district court reiterated that it required
“the underlying case be decided first, so if a consecutive
sentence is forthcoming, it has something with which to be
consecutive.” Defense counsel then told the district court that
Reyes-Solosa was prepared to admit to the violation and
requested immediate sentencing. The district court responded
that “whatever we do, we can do just as easily on the 9th or
10th of August.” Defense counsel objected, which the district
court noted, and the revocation hearing was continued until
August 12, 2013.
At her revocation hearing on August 12, 2013, Reyes-
Solosa admitted violating the terms of her supervised release.
Defense counsel requested a three-month sentence,
consecutive to the six-month sentence Reyes-Solosa received
in her criminal case. The district court stated that it had
considered the 18 U.S.C. § 3553(a) sentencing factors and the
rules of supervised release under 18 U.S.C. § 3583 in its
formulation of a sentence. The district court observed that for
a Class B violation and a criminal history category of II, the
Sentencing Guidelines range was six to twelve months and
that the probation office recommended a consecutive twelve-
month sentence.
UNITED STATES V. REYES-SOLOSA 5
The district court then reviewed Reyes-Solosa’s criminal
history report. Noting Reyes-Solosa’s 2009 illegal reentry,
for which she received sixty days imprisonment and one year
of supervised release; her 2011 illegal reentry, for which she
received six months imprisonment and three years of
supervised release from the district court; and her 2013 illegal
reentry, for which she received six months imprisonment and
one year of supervised release, the district court explained:
I see no alternative in this case but to clearly
say that she ha[s] violated not only my trust,
but I think the trust of the government of the
United States. [I] tried to go along with her,
. . . [the] problems that she has had, [but] it is
just too much to absorb in the fact that she has
three prior violations.
The district court revoked Reyes-Solosa’s supervised release
and sentenced her to twelve months imprisonment
consecutive to the six-month sentence she had received for
her 2013 illegal reentry, with no additional term of supervised
release. Defense counsel objected to the sentence on grounds
of substantive and procedural unreasonableness.
II
We review de novo the district court’s interpretation and
application of the Federal Rules of Criminal Procedure.
United States v. Alvarez-Moreno, 657 F.3d 896, 900 n.2 (9th
Cir. 2011). The parties dispute whether Federal Rule of
Criminal Procedure 32 or 32.1 governs the district court’s
continuance of Reyes-Solosa’s revocation hearing. Reyes-
Solosa contends that Rule 32 applies to post-revocation
sentencing, requiring the district court to “impose sentence
6 UNITED STATES V. REYES-SOLOSA
without unnecessary delay.” See Fed. R. Crim. P. 32(b)(1).
The government responds that Rule 32.1 governs revocation
hearings, including post-revocation sentencing, which must
be held “within a reasonable time.” See id. R. 32.1(b)(2).
We have said that “sentencing procedures for probation
and supervised release violations are primarily governed by
Rule 32.1 of the Federal Rules of Criminal Procedure, not
Rule 32.” United States v. Leonard, 483 F.3d 635, 638–39
(9th Cir. 2007). More recently, we reiterated that Rule 32.1
primarily governs post-revocation sentencing and that we
look to Rule 32 “to the extent Rule 32.1 is silent” on a
particular issue. United States v. Whitlock, 639 F.3d 935, 940
(9th Cir. 2011) (citing Leonard, 483 F.3d at 638–39).
Here, Rule 32.1 is not silent on the subject of timing. It
contains an express timing provision for the revocation
hearing, which should be held “within a reasonable time.”
See Fed R. Crim. P. 32.1(b)(2). Although the opening clause
setting the time for the revocation hearing does not explicitly
refer to post-revocation sentencing, the same section provides
that a person must have “an opportunity to make a statement
and present any information in mitigation.” Id. R.
32.1(b)(2)(E). This part of the section gives a supervised
releasee the right to allocute at the revocation hearing.1 A
supervised releasee’s right to allocute logically relates to
post-revocation sentencing. Because Rule 32.1(b)(2) covers
post-revocation sentencing procedures and has a timing
1
This language was added to Rule 32.1 after amendment in 2005 aimed
at giving the supervised releasee an express right to allocution at post-
revocation sentencing. See Whitlock, 639 F.3d at 940.
UNITED STATES V. REYES-SOLOSA 7
provision, we do not look to Rule 32 in assessing whether the
sentencing here was timely.2 See Whitlock, 639 F.3d at 940.
The district court’s continuance of Reyes-Solosa’s
revocation hearing for about three weeks until after
sentencing took place in her criminal case was reasonable
under Rule 32.1. Where district courts see the same
defendant multiple times, it is important for our criminal
justice system that the district court be able to impose a post-
revocation sentence based on breach of the court’s trust that
is distinct from the underlying criminal violation. This
conforms with the Sentencing Commission’s comment that
a post-revocation sentence should be imposed consecutively
to a criminal sentence: the “sanction for the violation of trust
should be in addition, or consecutive, to any sentence
imposed for the new conduct.” U.S. Sentencing Guidelines
Manual ch. 7, pt. A(3)(b), introductory cmt.
There are fundamental reasons why this makes sense.
Post-revocation sentencing relates back to the procedure in
2
Reyes-Solosa relies on United States v. Carper, 24 F.3d 1157 (9th Cir.
1994), which had language suggesting that Rule 32.1 did not cover post-
revocation sentencing. It is true that in Carper we said: “Rule 32.1 does
not address sentencing, but only procedures for modifying or revoking
supervised release . . . . Rule 32.1 thus governs the decision of whether or
not to revoke supervised release, while Rule 32 governs the decision of
what sentence to impose.” Id. at 1159–60. However, we do not find this
language from Carper persuasive. For one thing, it predated the 2005
amendment to Rule 32.1 that explicitly gave a supervised releasee the
right to allocution at the revocation hearing, which is decidedly part of
sentencing. Also, whether one would have characterized the statement in
Carper as dictum at the time, it is clear that our later circuit law, after the
2005 amendment to Rule 32.1, has made explicit that post-revocation
sentencing is a part of Rule 32.1’s procedures. See Whitlock, 639 F.3d at
940; Leonard, 483 F.3d at 638–39.
8 UNITED STATES V. REYES-SOLOSA
which the court previously imposed a sentence. In most
cases, conduct causing a revocation of supervised release will
necessarily involve a breach of trust between the releasee and
the court that imposed the supervised release conditions. A
defendant has been given release, but only on condition of
maintaining certain behavior. Breach of those conditions is
a serious breach of trust with the court that allowed release
and set those conditions for release. The betrayal of trust
warrants strong and independent corrective action. This is
especially true when, as here, the defendant violates
supervised release by committing the same offense that led to
the imposition of supervised release in the first place. See
United States v. Simtob, 485 F.3d 1058, 1063 (9th Cir. 2007)
(“A violator who, after committing an offense and being
placed on supervised release for that offense, again commits
a similar offense is not only more likely to continue on that
path, but also has demonstrated to the court that the violator
has little respect for its command. Because the district
court’s trust in the violator’s ability to coexist in society
peacefully has been broken to a greater degree than if the
violator had committed a minor offense of a dissimilar nature,
greater sanctions may be required to deter future criminal
activity.”). A district court imposing a post-revocation
sentence may want to defer the revocation hearing to consider
the entire picture, including the sentence imposed for the
underlying crime that caused the revocation.
Here, Reyes-Solosa has repeated illegal reentry violations
in her criminal history that contributed to the district court’s
determination on breach of trust. The district court had seen
Reyes-Solosa in 2011, when it imposed the supervised release
term violated in this case, and considered her two other illegal
reentry violations. There is no evidence in the record that the
district court continued the revocation hearing in order to
UNITED STATES V. REYES-SOLOSA 9
punish Reyes-Solosa for her 2013 illegal reentry violation.
See United States v. Miqbel, 444 F.3d 1173, 1182 (9th Cir.
2006). There is no evidence in the record that the district
court imposed the twelve-month post-revocation sentence
“solely, or even primarily, based on the severity of the new
criminal offense underlying the revocation.” See Simtob,
485 F.3d at 1063; see also U.S. Sentencing Guidelines
Manual ch. 7, pt. A(3)(b), introductory cmt. (noting that “at
revocation the court should sanction primarily the defendant’s
breach of trust, while taking into account, to a limited degree,
the seriousness of the underlying violation and the criminal
history of the violator”). There is also no suggestion that
continuing the revocation hearing would create an indefinite
delay. Cf. United States v. Pagan-Rodriguez, 600 F.3d 39, 42
(1st Cir. 2010).
Under these circumstances, the district court’s decision to
continue the revocation hearing for about three weeks for
consideration of Reyes-Solosa’s criminal sentence was not
unreasonable.3 Nor was it unreasonable for the district court
3
In her brief, Reyes-Solosa contends that the grant of a continuance
“exceeded the court’s statutory sentencing authority under 18 U.S.C.
§ 3584.” The district court, Reyes-Solosa argues, is “not authorized to
manipulate the sentencing order for the sole purpose of giving himself or
herself – and not the other district judge – the power to decide whether the
sentences will run concurrent or consecutive.” At oral argument, Reyes-
Solosa also cited our court’s recent ruling in United States v. Montes-Ruiz,
745 F.3d 1286 (9th Cir. 2014), contending that the district court is not
permitted to “sua sponte continue their hearings . . . to . . . circumvent the
court’s ruling in Montes-Ruiz.”
We reject this argument. Interpreting 18 U.S.C. § 3584(a) in Montes-
Ruiz, we held that a federal court cannot impose a consecutive (or
concurrent) sentence to a non-existent federal term. 745 F.3d at 1292. In
doing so, we clarified that the Supreme Court’s decision in Setser v.
10 UNITED STATES V. REYES-SOLOSA
to want to continue the revocation hearing for a reasonable
time, here a few weeks, so that its sentence on revocation
could follow and be consecutive to the sentencing on the
underlying crime.
In light of the sound reasons why a court may wish to
continue a sentencing hearing on revocation to follow
sentencing in the underlying crime, the sole issue under the
language of Rule 32.1 is whether the revocation hearing is
held “within a reasonable time.” We hold that a district court
can continue post-revocation sentencing for a reasonable time
to consider a supervised releasee’s sentence in the underlying
criminal proceeding as part of evaluating the supervised
releasee’s breach of trust. In this case, the district court’s
approximately three-week continuance was not unreasonable
under Rule 32.1.4
United States, 132 S. Ct. 1463 (2012), which permitted prospective federal
sentencing to anticipated, but not-yet-imposed state sentences, did not
disturb circuit precedent prohibiting prospective federal sentencing to
anticipated, but not-yet-imposed federal sentences, a question left open by
the Supreme Court. See Montes-Ruiz, 745 F.3d at 1292; see also Setser,
132 S. Ct. at 1471 n.4.
Neither 18 U.S.C. § 3584(a) nor Montes-Ruiz address the issue of
when a district court may continue a revocation hearing. A federal court
cannot impose a sentence consecutive to a federal sentence that does not
exist, but that was not done here. Reyes-Solosa’s argument that the
district court’s continuance here offends Montes-Ruiz has no foundation
in that opinion. Moreover, granting a continuance of a revocation hearing
for a reasonable time in order to consider a criminal sentence is not an
improper manipulation of the sentencing rules.
4
Because we conclude that a continuance of about three weeks is
reasonable under Rule 32.1, we also conclude that there is no due process
violation. See United States v. Santana, 526 F.3d 1257, 1260–61 (9th Cir.
2008) (“We hasten to say that a reasonable time for proceeding to a
UNITED STATES V. REYES-SOLOSA 11
III
We review the substantive reasonableness of a sentence
for abuse of discretion. United States v. Carty, 520 F.3d 984,
993 (9th Cir. 2008) (en banc). The district court reviewed
Reyes-Solosa’s criminal history and her three prior illegal
reentry offenses, including her most recent offense resulting
in a breach of the district court’s trust. Reyes-Solosa’s
twelve-month post-revocation sentence is at the high end, but
within the Guidelines range for a Grade B violation within
criminal history category II, see U.S.S.G. § 7B1.4(a), and is
not substantively unreasonable in light of the 18 U.S.C.
§ 3553(a) sentencing factors and the totality of the
circumstances. See Carty, 520 F.3d at 993.
AFFIRMED.
full-scale criminal trial is not the same as a reasonable time for revocation
proceedings, and therefore Speedy Trial Clause authority should not be
applied in revocation proceedings as if it were directly controlling. But
even pursuing the Speedy Trial analogy, we must underline the huge
disparity between the four-month delay in this case versus the eight-year
delay that led to dismissal in [United States v. Mendoza, 525 F.3d 836 (9th
Cir. 2008), amended and superseded by 530 F.3d 758 (9th Cir. 2008)].
Doggett v. United States, 505 U.S. 647, 652 n.1 (1992), stated that the
lower courts generally have agreed that post-accusation delay starts to
become serious enough to trigger Speedy Trial analysis as it approaches
one year.”).