United States v. Rodolfo Gavilanes-Ocaranza

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 13-50123
Plaintiff-Appellee,
D.C. No.
v. 3:09-cr-01607-L-1
RODOLFO GAVILANES-OCARANZA,
Defendant-Appellant. OPINION
Appeal from the United States District Court
for the Southern District of California
M. James Lorenz, Senior District Judge, Presiding
Submitted October 7, 2014*
Pasadena, California
Filed November 25, 2014
Before: Michael Daly Hawkins and Susan P. Graber,
Circuit Judges, and John W. Sedwick,** District Judge.
Opinion by Judge Graber
*
The panel unanimously concludes that this case is suitable for decision
without oral argument. Fed. R. App. P. 34(a)(2).
**
The Honorable John W. Sedwick, United States District Judge for the
District of Alaska, sitting by designation.
2 UNITED STATES V. GAVILANES-OCARANZA
SUMMARY***
Criminal Law
The panel affirmed the district court’s revocation of
supervised release and the sentence imposed upon revocation.
The panel held that the revocation of supervised release
and the imposition of additional prison time do not violate the
Sixth Amendment’s guarantee of a speedy trial, even when
the revocation and sentencing take place years after the
original conviction. The panel also held that Alleyne v.
United States, 133 S. Ct. 2151 (2013), does not affect the
validity of the determination in United States v. Huerta-
Pimental, 445 F.3d 1220, 1224 (9th Cir. 2006), that the
revocation of supervised release and the imposition of
additional prison time pursuant to 18 U.S.C. § 3583 do not
violate the Sixth Amendment right to trial by jury.
COUNSEL
Joan Kerry Bader, San Diego, California, for Defendant-
Appellant.
Alexandra F. Foster and Bruce Castetter, Assistant United
States Attorneys, and Laura E. Duffy, United States Attorney,
San Diego, California, for Plaintiff-Appellee.
***
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. GAVILANES-OCARANZA 3
OPINION
GRABER, Circuit Judge:
Defendant Rodolfo Gavilanes-Ocaranza pleaded guilty to
being a removed alien found in the United States, a violation
of the terms of his federal supervised release. The district
court revoked Defendant’s supervised release and sentenced
him to an additional 12 months’ imprisonment. Defendant
raises several constitutional and other challenges to that
sentence. In this published opinion, we address only his Sixth
Amendment claims. We address his other arguments in an
unpublished memorandum disposition filed concurrently with
this opinion.
Because Defendant did not raise his Sixth Amendment
objections before the district court, we review for plain error,
United States v. Ameline, 409 F.3d 1073, 1078 (9th Cir. 2005)
(en banc), and we affirm. We hold that the revocation of
supervised release and the imposition of additional prison
time do not violate the Sixth Amendment’s guarantee of a
speedy trial, even when the revocation and sentencing take
place years after the original conviction. We also hold that
Alleyne v. United States, 133 S. Ct. 2151 (2013), does not
affect the validity of our determination in United States v.
Huerta-Pimental, 445 F.3d 1220, 1224 (9th Cir. 2006), that
the revocation of supervised release and the imposition of
additional prison time pursuant to 18 U.S.C. § 3583 do not
violate the Sixth Amendment right to trial by jury.
FACTUAL AND PROCEDURAL HISTORY
In 2009, Defendant pleaded guilty to attempted reentry
after removal, in violation of 8 U.S.C. § 1326. The district
4 UNITED STATES V. GAVILANES-OCARANZA
court sentenced him to 33 months’ imprisonment and three
years’ supervised release. As a condition of his supervised
release, Defendant agreed that, “[i]f deported, excluded, or
allowed to voluntarily return to [his] country of origin,” he
would “[n]ot reenter the United States illegally.” He also
agreed not to “commit another federal, state or local crime.”
In 2012, Defendant pleaded guilty to being a removed
alien in the United States, in violation of 8 U.S.C. § 1326. A
different district court sentenced him to 46 months’
imprisonment and three years’ supervised release. Defendant
then appeared in revocation proceedings before the district
court from the 2009 conviction and admitted the violation of
his initial supervised release. That court revoked Defendant’s
supervised release and sentenced him to 12 months’
imprisonment, to run consecutively to the 46-month sentence.
Defendant timely appeals.
DISCUSSION
As a preliminary matter, Defendant argues that Supreme
Court and Ninth Circuit precedent on revocation of probation
and parole does not apply to revocation of supervised release,
because parolees and probationers are still serving their
sentences, while supervised releasees are not. In the present
context, though, there is no material distinction between
revocation of parole or probation and revocation of
supervised release. District courts are authorized to include
“as a part of the sentence a requirement that the defendant be
placed on a term of supervised release after imprisonment.”
18 U.S.C. § 3583(a) (emphasis added). Moreover,
[s]upervised release and parole are
virtually identical systems. Under each, a
UNITED STATES V. GAVILANES-OCARANZA 5
defendant serves a portion of a sentence in
prison and a portion under supervision outside
prison walls. If a defendant violates the terms
of his release, he may be incarcerated once
more under the terms of his original sentence.
More specifically, a defendant’s original
sentence determines the length of the term of
parole (indirectly) or supervised release
(directly). It is also the original sentence that
establishes how long the defendant may be
required to serve following revocation in the
case of both parole and supervised release
violations. Finally, it is the original sentence
that is executed when the defendant is
returned to prison after a violation of the
terms of both parole and supervised release.
Revocation of parole is not a punishment
for a new offense, although the conduct on
which revocation is based may be punished
separately. For revocation purposes, the
conduct simply triggers the execution of the
conditions of the original sentence. Those
conditions may not be made more severe, nor
may the defendant’s term of reincarceration
after his violation be made more onerous, by
any act adopted after he was sentenced. In
this respect, there is no conceivable basis for
distinguishing between parole and supervised
release.
United States v. Paskow, 11 F.3d 873, 881 (9th Cir. 1993)
(footnote omitted). In Paskow, we held that parole and
supervised release are the same for the purposes of an ex post
6 UNITED STATES V. GAVILANES-OCARANZA
facto analysis. Id. Relying on Paskow, we also have held
that revocations of parole, probation, and supervised release
are the same for double jeopardy purposes, because they all
constitute punishment for the underlying crime. United
States v. Soto-Olivas, 44 F.3d 788, 791 (9th Cir. 1995).
The similarities between revocation of parole or probation
and revocation of supervised release are equally salient in the
Sixth Amendment context. The Sixth Amendment applies
only to “criminal prosecutions.” U.S. Const. amend. VI. The
revocation of supervised release is not a criminal prosecution
for Sixth Amendment purposes, because the violation “simply
triggers the execution of the conditions of the original
sentence.” Paskow, 11 F.3d at 881. We therefore conclude
that revocation of supervised release, revocation of parole,
and revocation of probation must be analyzed the same way
when we consider Sixth Amendment speedy trial and trial by
jury claims.
A. Speedy Trial
There is no Sixth Amendment right to a speedy trial in
supervised release revocation proceedings, because those
proceedings are not part of a criminal prosecution and thus
the “full panoply of rights due a defendant in such a
proceeding does not apply.” United States v. Hall, 419 F.3d
980, 985 (9th Cir. 2005) (internal quotation marks omitted).
A defendant does have a right to a reasonably prompt hearing
on revocation of supervised release, but that right is rooted in
the Fifth Amendment’s Due Process Clause, not in the Sixth
Amendment’s Speedy Trial Clause. United States v. Santana,
526 F.3d 1257, 1259 (9th Cir. 2008).
UNITED STATES V. GAVILANES-OCARANZA 7
Defendant does not challenge any purported delay in
holding the revocation hearing; indeed, the hearing was held
promptly after the violation occurred. Instead, he argues that
the revocation proceedings are an extension of the original
criminal prosecution for his 2009 violation of federal law and
that the four-year gap between the 2009 offense and the
revocation hearing violates his right to a speedy trial.1 That
argument is clearly foreclosed, because supervised release
arises “after the end of the criminal prosecution, including
imposition of sentence.” Morrissey v. Brewer, 408 U.S. 471,
480 (1972) (explaining why Sixth Amendment rights do not
apply to parole revocations). A fortiori, a violation of
supervised release also arises after the end of the criminal
prosecution. We previously have noted in passing that the
Speedy Trial Clause does not apply to proceedings to revoke
supervised release. Santana, 526 F.3d at 1259. To the extent
that our precedent is ambiguous on that point, we eliminate
that ambiguity by holding now that there is no Sixth
Amendment right to a speedy “trial” in supervised release
revocation proceedings and that a revocation proceeding is
neither its own criminal prosecution nor an extension of the
original criminal prosecution that led to the imposition of
supervised release.
1
Defendant also refers to violations of the Speedy Trial Act without
explaining what those violations might be. Regardless, the Act does not
apply. The time limits in the Speedy Trial Act focus on the time between
indictment or entry of a not-guilty plea and the start of a trial. 18 U.S.C.
§ 3161(a), (c). Unless the plea is withdrawn, there appears to be no post-
guilty-plea application of the Speedy Trial Act. United States v.
Tinklenberg, 579 F.3d 589, 594 (6th Cir. 2009), aff’d on other grounds,
131 S. Ct. 2007 (2011).
8 UNITED STATES V. GAVILANES-OCARANZA
B. Trial by Jury
We have held that the supervised release system under
18 U.S.C. § 3583, including revocation of that release and
imposition of additional prison time as a result of a violation
of a term of the release, does not violate a defendant’s right
to trial by jury. Huerta-Pimental, 445 F.3d at 1224.
Defendant contends that Alleyne v. United States, 133 S. Ct.
2151 (2013), effectively overruled Huerta-Pimental. We
disagree.
In Alleyne, 133 S. Ct. at 2155, the Supreme Court relied
on its decision in Apprendi v. New Jersey, 530 U.S. 466
(2000), and held that the Sixth Amendment guarantees the
right to have any fact that increases a statutory minimum
sentence proved to a jury beyond a reasonable doubt. Thus,
Alleyne deals with the imposition of a sentence in the first
instance after a criminal conviction; it says nothing about the
imposition of additional prison time after a violation of
supervised release. Alleyne therefore does not affect the
validity of our holding in Huerta-Pimental. Cf. Santana,
526 F.3d at 1262 (rejecting a similar challenge to the
authority of Huerta-Pimental, because “Cunningham[ v.
California, 549 U.S. 270 (2007),] interprets the Sixth
Amendment, and therefore it is not relevant to revocation
proceedings”).
We hold that, after Alleyne, Huerta-Pimental remains
good law. We reaffirm that the revocation of supervised
release and the imposition of additional prison time pursuant
to 18 U.S.C. § 3583 do not violate a defendant’s right to trial
by jury.
AFFIRMED.