United States v. Nicholas Vasquez-Perez

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 12-10433
Plaintiff-Appellee,
D.C. No.
v. 4:12-cr-50033-
DCB-JR-1
NICOLAS VASQUEZ-PEREZ,
Defendant-Appellant. OPINION
Appeal from the United States District Court
for the District of Arizona
David C. Bury, District Judge, Presiding
Submitted January 13, 2014*
San Francisco, California
Filed February 10, 2014
Before: Arthur L. Alarcón, Richard C. Tallman,
and Sandra S. Ikuta, Circuit Judges.
Opinion by Judge Alarcón
*
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
2 UNITED STATES V. VASQUEZ-PEREZ
SUMMARY**
Criminal Law
Affirming a judgment revoking supervised release and the
sentence imposed upon revocation, the panel held that the
provisions in Fed. R. Crim. P. 32.1 pertaining to initial
appearances are inapplicable when a defendant is in custody
on underlying criminal charges at the time the revocation
proceedings are initiated.
The panel held that the magistrate judge therefore did not
err in failing to inform the defendant of the allegations
against him at the initial proceeding. The panel also held that
the defendant was provided proper notice of the alleged
supervised-release violation prior to his revocation hearing.
The panel rejected the defendant’s contentions that the
district court committed procedural error at sentencing and
that the sentence is substantively unreasonable.
The panel rejected as foreclosed the defendant’s
contention that he was denied the procedural protections
guaranteed by Boykin v. Alabama.
**
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. VASQUEZ-PEREZ 3
COUNSEL
Robert H. Sigal, Tucson, Arizona, for Defendant-Appellant.
Heather Sechrist, Assistant United States Attorney, Tucson,
Arizona, for Plaintiff-Appellee.
OPINION
ALARCÓN, Circuit Judge:
Nicolas Vasquez-Perez was sentenced to serve 21 months
for violating the terms of his supervised release by illegally
reentering the country after he had been deported. He
contends in this appeal that he was not provided with
adequate notice of the allegations against him, that his
sentence was unreasonable, and that he was denied the
protections of Boykin v. Alabama, 395 U.S. 238 (1969). We
affirm.
I
On August 21, 2011, U.S. border patrol agents found
Nicolas Vasquez-Perez hiding in the desert brush outside
Quijota, Arizona. He was in the country unlawfully, having
been deported five months earlier. The agents arrested him,
and two days later he was charged with illegally reentering
the country after deportation, a violation of 8 U.S.C. § 1326.
At the time of his arrest, Vasquez-Perez was five months
into a three-year term of supervised release, which was
imposed after a 2010 conviction for illegal reentry following
deportation. One of the conditions of his supervised release
4 UNITED STATES V. VASQUEZ-PEREZ
was that he not commit any federal, state, or local crimes. On
February 7, 2012, the U.S. Probation Office filed a petition to
revoke Vasquez-Perez’s supervised release, based on the
illegal-reentry charges stemming from the Quijota incident.
At that time, Vasquez-Perez remained in custody on those
charges. That same day, an Arizona district court issued an
arrest warrant in the supervised-release matter and took
notice of the related illegal-reentry case. On February 14,
2012, Vasquez-Perez made an initial appearance on the
revocation matter.
Vasquez-Perez was sentenced on the criminal charge of
illegal reentry and for violating the terms of his supervised
release on August 9, 2012. Prior to the sentencing hearing, he
reached a plea agreement with the Government for the illegal-
reentry charge that called for a sentence of 27 to 33 months.
There was no prior agreement, however, regarding the alleged
supervised-release violation. The district court considered
both parties’ recommendations before pronouncing its
sentence. Vasquez-Perez argued that a combined sentence of
42 months would be sufficient but not greater than necessary.
The Government disagreed. It argued for a combined
sentence of 54 months—33 months for the illegal-reentry
offense and 21 months for the supervised-release violation.
Before sentencing Vasquez-Perez, the court expressed its
concern over his extensive criminal history, which included
a number of instances of unlawful entry into the United States
as well as convictions for other felony offenses. Because of
his record, the district court stated that it was necessary to
impose a sentence of sufficient length to deter Vasquez-Perez
from reentering the United States illegally. The district court
sentenced Vasquez-Perez to serve a 30-month term for the
crime of illegal reentry, and a 21-month term for his violation
UNITED STATES V. VASQUEZ-PEREZ 5
of supervised release. The sentences were ordered to run
consecutively for a total of 51 months. In this appeal,
Vasquez-Perez challenges only the 21-month sentence for
violating the terms of his supervised release.
II
We first address Vasquez-Perez’s claim that his due
process rights were violated because he was given insufficient
notice of the alleged violation of his supervised release. “The
Supreme Court has defined certain minimal due process
requirements for parole revocation. It has also extended these
protections to probation revocation.” United States v. Havier,
155 F.3d 1090, 1092 (9th Cir. 1998) (citations omitted). Rule
32.1 of the Federal Rules of Criminal Procedure, “which
applies to supervised release revocation, incorporates these
due process requirements as well.” Id.
Rule 32.1 sets forth the basic procedural framework for
revocation proceedings. It calls for three separate hearings: an
initial appearance, a preliminary hearing, and a revocation
hearing. Fed. R. Crim. P. 32.1(a)–(b). At an initial
appearance, the magistrate judge “must inform the person
of . . . the alleged violation of probation or supervised
release.” Id. at 32.1(a)(3)(A). Similarly, at a preliminary
hearing, “[t]he judge must give the person[] notice of . . . the
alleged violation.” Id. at 32.1(b)(1)(B)(i). At the revocation
hearing, a defendant is entitled to “written notice of the
alleged violation.” Id. at 32.1(b)(2)(A). “Whether a defendant
received sufficient notice to satisfy due process incorporated
by [Rule] 32.1 is reviewed de novo.” Havier, 155 F.3d at
1092.
6 UNITED STATES V. VASQUEZ-PEREZ
A
Vasquez-Perez contends that we must vacate his sentence
for violating the terms of his supervised release because he
was not provided notice of his alleged violation at his initial
appearance on February 14, 2012. The record shows that the
proceeding was conducted en masse, with a number of other
defendants also appearing. The magistrate judge asked
counsel collectively whether they waived the reading of the
allegations against the defendants. The record reflects
“[s]imultaneous affirmative responses by various defense
counsel.” The record does not indicate, however, whether
Vasquez-Perez’s attorney responded. Vasquez-Perez
maintains that any alleged waiver of his Rule 32.1 right to be
informed of the allegations against him was ineffective.
Our circuit has not yet considered whether Rule 32.1’s
initial-appearance provisions apply in cases such as this one,
where the defendant is already in custody on other charges at
the time a revocation proceeding was initiated. We have,
however, determined that the Rule’s analogous provisions for
preliminary hearings do not apply in such cases. See United
States v. Diaz-Burgos, 601 F.2d 983, 984–85 (9th Cir. 1979)
(“[W]e do not agree . . . it was necessary to provide him with
a preliminary probable cause hearing . . . because appellant
was already in custody at the time of the revocation
proceeding by reason of a second re-entry prosecution.”).
If Rule 32.1’s preliminary-hearing provisions are
inapplicable when a revocation proceeding is initiated against
a defendant who is already in custody on separate criminal
charges, then the Rule’s initial-appearance provisions should
be similarly inapplicable in that context. Both provisions
apply only to persons in custody for violating probation or
UNITED STATES V. VASQUEZ-PEREZ 7
supervised release. Fed. R. Crim. P. 32.1(a)(1), (b)(1)(A).
Neither expressly applies to persons already in custody for a
separate offense.
Further, the due process concerns that Rule 32.1 addresses
are not implicated by a revocation proceeding that is initiated
against a defendant who is already in custody on underlying
criminal charges. A defendant facing revocation ordinarily is
entitled to due process because such proceedings entail a
“serious deprivation” of liberty. Gagnon v. Scarpelli,
411 U.S. 778, 781 (1973). Thus, both the initial-appearance
provisions and the preliminary-hearing provisions make sense
when an individual is initially brought into custody for
violating the terms of his or her supervised release. These
individuals have been deprived of their liberty, and they must
be provided the procedural protections of Rule 32.1.
But the calculus changes when a defendant is already
being held for an offense other than the alleged probation or
supervised-release violation. See Morrissey v. Brewer,
408 U.S. 471, 481 (1972) (“Whether any procedural
protections are due depends on the extent to which an
individual will be condemned to suffer grievous loss.”
(internal quotation marks omitted)). When a defendant facing
revocation is already in custody on underlying charges, there
is no immediate loss of liberty. Whatever “grievous loss” the
defendant suffered was visited upon him or her at the time he
or she was initially incarcerated on the underlying criminal
charges. Thus, the interest protected by the initial-appearance
and preliminary-hearing provisions—a defendant’s right to
liberty—is not implicated in cases where he or she is already
in custody on criminal charges at the time the revocation
proceedings are initiated.
8 UNITED STATES V. VASQUEZ-PEREZ
Accordingly, we hold that the provisions in Rule 32.1
pertaining to initial appearances are inapplicable when a
defendant is in custody on underlying criminal charges at the
time the revocation proceedings are initiated. The magistrate
judge did not err in failing to inform Vasquez-Perez of the
allegations against him at the initial proceeding.
B
We turn next to the question of whether Vasquez-Perez
was provided sufficient written notice of his alleged
supervised-release violation prior to his revocation hearing.
The written-notice requirement is satisfied in a revocation
proceeding when a defendant has been apprised in writing of
both the underlying factual incident and the specific statute he
or she is charged with violating. See Havier, 155 F.3d at
1093–94 (explaining that a revocation petition should leave
no confusion as to the factual incident or the legal statutory
offense being charged). Vasquez-Perez admitted that he
received the revocation petition prior to his sentencing
hearing. The petition alleged that he violated the terms of his
supervised release by committing a crime. Specifically, it
contended that Vasquez-Perez violated 8 U.S.C. § 1326 by
illegally reentering the United States near Quijota, Arizona on
or before August 21, 2011. The revocation petition properly
identified the statute Vasquez-Perez was charged with
violating and alleged the underlying facts. Accordingly, we
are persuaded that Vasquez-Perez was provided proper notice
of the alleged violation of his supervised release.
III
Vasquez-Perez next challenges the overall reasonableness
of his 21-month sentence. We address such challenges in a
UNITED STATES V. VASQUEZ-PEREZ 9
two-part analysis: “we first consider whether the district court
committed significant procedural error, then we consider the
substantive reasonableness of the sentence.” United States v.
Carty, 520 F.3d 984, 993 (9th Cir. 2008) (en banc).
A
Before imposing a sentence, a district court must
“(1) correctly calculate the Sentencing Guidelines range;
(2) treat the Guidelines as advisory; (3) consider the
18 U.S.C. § 3553(a) factors; (4) choose a sentence that is not
based on clearly erroneous facts; (5) adequately explain the
sentence; and (6) not presume that the Guidelines range is
reasonable.” United States v. Blinkinsop, 606 F.3d 1110, 1114
(9th Cir. 2010) (footnote omitted). Vasquez-Perez contends
the district court did not adequately consider the § 3553(a)
factors or properly explain the basis for the sentence. Because
he did not raise these objections at sentencing, we review for
plain error. Id.
A district court must explain its sentencing decision in a
way that permits for meaningful appellate review. Carty,
520 F.3d at 992. Whether a district court’s explanation is
sufficient depends on the context and complexity of a case.
Id. “The district court need not tick off each of the § 3553(a)
factors to show that it has considered them.” Id. Indeed, a
sentence within the Guidelines range often needs little
explanation, and a sufficient explanation can sometimes be
inferred from the record as a whole. Id.
We find no fault in the sentencing procedure employed in
this matter. The 21-month sentence is at the low end of the
Guidelines range, which calls for a sentencing range of 21 to
24 months. The district court reviewed both the presentence
10 UNITED STATES V. VASQUEZ-PEREZ
report and Sentencing Commission’s policy statements and
heard from both parties before announcing its sentence.
While the court did not expressly state it had considered the
§ 3553(a) factors, it was not required to do so. See Carty,
520 F.3d at 992 (“We assume that district judges . . .
understand their obligation to consider all of the § 3553(a)
factors, not just the Guidelines.”). The record demonstrates
that the court considered the § 3553(a) factors, and that is
sufficient.
Section 3553(a) instructs district courts to consider the
Guidelines, the pertinent policy statements, and the need for
a sentence to promote deterrence, protect the public from a
defendant’s further crimes, and to foster respect for the law,
among other things. 18 U.S.C. § 3553(a). The district court
stated that deterrence was the driving force behind its
decision. Its explanation demonstrates a concern for public
safety and reflects the need for Vasquez-Perez to respect the
law. The court noted that Vasquez-Perez repeatedly
disregarded the law, and it expressed particular concern that
he had illegally reentered the country on multiple occasions.
It stated, “I’m . . . telling you that if you ever come back
again, your sentence is going to be a lot longer.” The record
is quite clear that the district court considered Vasquez-
Perez’s arguments and based its decision on the advisory
Guidelines range, the pertinent policy statements, and the
sentencing factors set forth in 18 U.S.C. § 3553(a). Therefore,
we are persuaded that it did not commit procedural error.
B
Having determined that the district court did not commit
procedural error in sentencing Vasquez-Perez, we turn to the
question of whether the sentence was substantively
UNITED STATES V. VASQUEZ-PEREZ 11
reasonable. We review the substantive reasonableness of a
sentence for abuse of discretion based on the totality of the
circumstances. Carty, 520 F.3d at 993. “In determining
whether a sentence is unreasonable, we are guided by the
sentencing factors set forth in 18 U.S.C. § 3553(a), including
the sentencing range established by the Sentencing
Guidelines.” United States v. Plouffe, 445 F.3d 1126, 1131
(9th Cir. 2006). When a sentence falls within the Guidelines,
“it is probable that the sentence is reasonable.” Carty,
520 F.3d at 994 (quoting Rita v. United States, 551 U.S. 338,
351 (2007)).
Vasquez-Perez contends his sentence is unreasonable
because it is disproportionate to the length of his prior
sentences. We disagree. The district court expressed
justifiable concern that Vasquez-Perez’s prior incarcerations
did not deter him from repeatedly reentering the United States
illegally. The record does not indicate the district court
abused its discretion in imposing its sentence.
IV
Finally, Vasquez-Perez argues he was denied the
procedural protections guaranteed by Boykin v. Alabama,
395 U.S. 238 (1969). Specifically, he contends that he should
have been informed that he had a right against self-
incrimination and a right to testify on his own behalf. This
argument, however, is foreclosed by our opinion in United
States v. Segal, 549 F.2d 1293 (9th Cir. 1977). There, we held
that Boykin’s safeguards do not apply in revocation
proceedings. Id. at 1296 (“The more difficult question is
whether Boykin safeguards apply at this stage. . . . [W]e
believe a reasoned answer must be no.”).
12 UNITED STATES V. VASQUEZ-PEREZ
CONCLUSION
The district court did not err in imposing a sentence based
on Vasquez-Perez’s violation of the provisions of his
supervised release. Because he was already in custody when
the revocation proceeding was initiated, he was not entitled
to an initial appearance with all of the requirements specified
in Rule 32.1 of the Federal Rules of Criminal Procedure. We
also conclude that the 21-month revocation sentence was
reasonable, and that Vasquez-Perez was not entitled to the
protections of Boykin v. Alabama.
AFFIRMED.