United States v. 2006-04-24 | 04-50037 | USA VHUERTA-PIMENTEL | precedential | opinion |

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
 UNITED STATES OF AMERICA,
Plaintiff-Appellee, No. 04-50037
v. D.C. No.
 CR-97-03128-NAJLAZARO HUERTA-PIMENTAL, aka
Jose Huerta, OPINION
Defendant-Appellant. 
Appeal from the United States District Court
for the Southern District of California
Napoleon A. Jones, District Judge, Presiding
Submitted April 12, 2006*
Pasadena, California
Filed April 24, 2006
Before: Harry Pregerson, A. Wallace Tashima, and
Richard A. Paez, Circuit Judges.
Opinion by Judge Paez
*This panel unanimously finds this case suitable for decision without
oral argument. See Fed. R. App. P. 34(a)(2).
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COUNSEL
Angela M. Krueger, Steven F. Hubachek, Federal Defenders
of San Diego, Inc., San Diego, California, for the defendant-
appellant.
Carol C. Lam, United States Attorney, Joseph H. Huynh,
Assistant United States Attorney, San Diego, California, for
the plaintiff-appellee.
OPINION
PAEZ, Circuit Judge:
Huerta-Pimental appeals the revocation of his term of
supervised release and the subsequent imposition of addi-
tional imprisonment for violating the conditions of release.
Specifically, Huerta-Pimental asserts that the district court
lacked jurisdiction to revoke his term of supervised release
and to impose a new term of imprisonment because the origi-
nal imposition of supervised release as a part of his sentence
was unconstitutional under Apprendi v. New Jersey, 530 U.S.
466 (2000), and Blakely v. Washington, 542 U.S. 296 (2004).
Huerta-Pimental argues that, because the statute under which
he was convicted, 8 U.S.C. § 1326, does not mandate the
imposition of supervised release, the district court exposed
him to additional punishment beyond the maximum sentence
authorized by § 1326 by imposing it pursuant to 18 U.S.C.
§ 3583. Huerta-Pimental also directly challenges the revoca-
tion proceedings under the Supreme Court’s decision in
United States v. Booker, 543 U.S. 220 (2005).1
1We deferred submission of Huerta-Pimental’s appeal pending the
Supreme Court’s decision in Booker, and ordered supplemental briefing
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We conclude § 3583 supervised release is constitutional
under Apprendi, Blakely, and Booker. Because supervised
release is imposed as part of the sentence authorized by the
fact of conviction and requires no judicial fact-finding, it does
not violate the Sixth Amendment principles recognized by
Apprendi and Blakely. For the same reasons, a district court’s
decision to revoke supervised release and impose associated
penalties is also constitutional. Additionally, because the
revocation of supervised release and imposition of an addi-
tional term of imprisonment is discretionary, neither violates
Booker. Accordingly, we affirm.
I
In 1998, the District Court for the Southern District of Cali-
fornia sentenced Huerta-Pimental to sixty-three months of
imprisonment followed by three years of supervised release
after he pled guilty to attempting to enter the United States
illegally, in violation of 8 U.S.C. § 1326(a), (b)(2). Upon
completion of his prison term, Huerta-Pimental was removed
to Mexico. Approximately five months later, in April 2003, he
was again arrested for attempting to reenter the United States
illegally. He again pled guilty to a § 1326 violation, this time
in the District Court for the Western District of Texas, which
sentenced him to seventy months of imprisonment.
Three months later, on petition by a Southern District of
California probation officer, Huerta-Pimental was brought
back before the same district judge who sentenced him in
1998 for a supervised release revocation hearing. At that hear-
ing, he argued that the court lacked jurisdiction to revoke his
on the impact of that case and our own United States v. Ameline, 409 F.3d
1073 (9th Cir. 2005) (en banc). Because Huerta-Pimental limits his Booker
challenge only to the revocation of supervised release rather than its origi-
nal imposition, we limit our Booker analysis to the revocation of super-
vised release.
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term of supervised release and impose additional prison time
because its initial imposition was unconstitutional under
Apprendi. The court disagreed. It found that Huerta-Pimental
violated the conditions of supervised release imposed in 1998.
The court then revoked the remainder of that term pursuant to
18 U.S.C. § 3583(e)(3) and imposed twenty-four months of
imprisonment. This timely appeal followed.
II
This court has jurisdiction to review criminal sentences
under 18 U.S.C. § 3742 and judgments of conviction as final
orders under 28 U.S.C. § 1291. We review de novo the consti-
tutionality of a statute as a question of law. See United States
v. Carranza, 289 F.3d 634, 643 (9th Cir. 2002).
III
Huerta-Pimental challenges the district court’s revocation
of supervised release and the imposition of an additional term
of imprisonment by attacking indirectly the court’s original
inclusion of supervised release as part of his 1998 sentence.
He argues that, because § 1326 does not mandate the imposi-
tion of supervised release, the district court’s decision to
impose it under 18 U.S.C. § 3583(a)2 unconstitutionally
exposed him to punishment beyond the maximum authorized
by § 1326 in violation of Apprendi. Huerta-Pimental argues
that, as a result, the district court lacked jurisdiction to revoke
2Section 3583(a) provides:
The court, in imposing a sentence to a term of imprisonment for
a felony or a misdemeanor, may include as a part of the sentence
a requirement that the defendant be placed on a term of super-
vised release after imprisonment, except that the court shall
include as a part of the sentence a requirement that the defendant
be placed on a term of supervised release if such a term is
required by statute or if the defendant has been convicted for the
first time of a domestic violence crime as defined in section
3561(b).
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supervised release and impose an additional term of imprison-
ment. We disagree.
Huerta-Pimental’s argument rests on a mistaken conception
of the nature of supervised release within the federal sentenc-
ing structure and of 18 U.S.C. § 3553(a)’s sentencing factors.
Supervised release is an integral part of the federal sentencing
structure, similar in purpose and scope to its predecessor,
parole. See Johnson v. United States, 529 U.S. 694, 696-97,
708-09 (2000) (discussing the replacement of supervised
release for parole by the Sentencing Reform Act of 1984 and
the underlying congressional policy to provide it as a mecha-
nism “to improve the odds of a successful transition from the
prison to liberty”). Supervised release “as part of a sentence”
is expressly authorized by § 3583 whether or not it is man-
dated by a statute of conviction or otherwise.3 18 U.S.C.
§ 3583(a) (1998).
When determining whether to impose a term of supervised
release under § 3583, a sentencing court must consider vari-
ous sentencing factors listed in § 3553(a). The court must also
impose certain conditions with which the defendant must
comply while on supervised release. See 18 U.S.C. § 3583(c),
(d). A court may also exercise its discretion to “modify,
reduce or enlarge” the conditions of supervised release as
warranted. 18 U.S.C. § 3583(e). Finally, a sentencing court
may “revoke a term of supervised release, and require a
defendant to serve in prison all or part of the term” if it finds
by a preponderance of the evidence that the defendant vio-
lated any of its conditions. Id.
3Although the then mandatory Sentencing Guidelines required the
imposition of supervised release at the time Huerta-Pimental was origi-
nally sentenced, see U.S.S.G. § 5D1.1(a), Huerta-Pimental argues only
that imposition in his case pursuant to § 3583 was unconstitutional under
Apprendi. Accordingly, we address only Apprendi’s effect on discretion-
ary imposition under § 3583.
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[1] Huerta-Pimental argues that, both generally and in his
case, this supervised release scheme violates the constitutional
holdings of Apprendi and Blakely. In those cases, the
Supreme Court reiterated that the Sixth Amendment requires
any fact, other than the fact of a prior conviction, that
increases the penalty for a crime beyond the prescribed statu-
tory maximum be submitted to a jury and proved beyond a
reasonable doubt, unless such facts are admitted by a defen-
dant or found by a judge following a defendant’s knowing and
voluntary waiver. See Apprendi, 530 U.S. at 476; Blakely, 542
U.S. at 303, 309.
[2] As to the imposition of supervised release, Huerta-
Pimental’s argument assumes that the terms of a statute of
conviction alone govern the scope of punishment that may be
imposed at sentencing. Huerta-Pimental argues that, because
§ 1326 does not expressly provide for the inclusion of super-
vised release, see 8 U.S.C. § 1326 (providing that after con-
viction “such alien shall be fined under title 18, United States
Code, imprisoned . . . or both”), including it as part of a sen-
tence pursuant to § 3583(a) amounts to additional punishment
beyond the maximum authorized by the statute of conviction.
This assumption is incorrect. Section 3583, one of several
statutes that together govern the federal criminal sentencing
structure, authorizes the imposition of supervised release upon
conviction of a qualifying offense.4 See United States v.
Montenegro-Rojo, 908 F.2d 425, 431-32 (9th Cir. 1990)
(holding § 3583(a) “itself authorizes a term of supervised
release in addition to a maximum term of imprisonment”
authorized by the statute of conviction). Indeed, it is well set-
tled that supervised release, whether or not mandated by the
4See, e.g., 18 U.S.C. §§ 3553 (requiring the court to impose an appropri-
ate sentence upon conviction), 3571 (permitting a court to impose a fine
as part of a sentence). Thus, upon conviction of a qualifying offense, a
federal criminal sentence may include a fine, imprisonment, and super-
vised release. A violation of § 1326 is a qualifying offense. See 8 U.S.C.
§ 1326 (directing that violators be sentenced “under title 18, United States
Code”).
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statute of conviction, is not additional punishment. Instead, it
is part of the original sentence authorized by conviction. See
18 U.S.C. § 3583(a) (expressly authorizing a court to include
“as part of the sentence” a term of supervised release); United
States v. Soto-Olivas, 44 F.3d 788, 790 (9th Cir. 1995) (“By
the plain language of the statute, supervised release, although
imposed in addition to the period of incarceration, is ‘a part
of the sentence.’ . . . Thus, the entire sentence, including the
period of supervised release, is the punishment for the original
crime.” (citations omitted)). It is immaterial for our Apprendi
analysis that § 1326 does not itself mandate the imposition of
supervised release.
[3] Moreover, § 3583 does not, as Huerta-Pimental argues,
require constitutionally impermissible judicial fact-finding.
As noted, when imposing supervised release, § 3583 directs
that a sentencing judge “shall consider” various factors listed
in § 3553(a). 18 U.S.C. § 3583(a), (e). Those factors, how-
ever, simply guide a judge’s exercise of discretion. They are
not a “checklist of requisite[ ]” facts, each of which a judge
must find before imposing a term of supervised release.
United States v. Johnson, 998 F.2d 696, 698 (9th Cir. 1993).
[4] Thus, Huerta-Pimental’s challenge to the district court’s
imposition of supervised release simply fails to engage
Apprendi. The inclusion of a term of supervised release as a
part of Huerta-Pimental’s original sentence neither exposed
him to additional punishment above the statutory maximum
nor required the court to engage in constitutionally impermis-
sible judicial fact-finding. In holding that Apprendi has no
effect on the imposition of § 3583 supervised release, we join
the First Circuit which has reached the same conclusion. See
United States v. Work, 409 F.3d 484, 489-91 (1st Cir. 2005)
(finding no Apprendi/Blakely error in the imposition of super-
vised release under § 3583).
Accordingly, we reject Huerta-Pimental’s Apprendi chal-
lenge and his related argument that the district court lacked
jurisdiction to revoke his supervised release.
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IV
Huerta-Pimental also challenges directly the district court’s
supervised release revocation and imposition of additional
imprisonment under Booker, 543 U.S. at 230-31. Huerta-
Pimental argues that revocation is unconstitutional because
Booker makes Apprendi applicable to a judge’s preponder-
ance of the evidence finding that a defendant has violated the
conditions of supervised release. See 18 U.S.C. § 3583(e)(3).
Again, we disagree.
[5] Reasoning from its Sixth Amendment holding in
Apprendi, the Supreme Court in Booker held that, in so far as
the federal Sentencing Guidelines were mandatory, they were
unconstitutional. 543 U.S. at 230-31, 244. The Court reme-
died that infirmity by making the Guidelines advisory. See id.
at 258-59 (severing and excising their mandatory provisions,
18 U.S.C. §§ 3553(b)(1), 3742(e)). Subsequently, in Ameline,
this court recognized that, in addition to the constitutional
error directly addressed in Booker, nonconstitutional plain
error exists in every case where a sentence was imposed by
a district judge who, before Booker, treated the Guidelines as
mandatory but would have imposed a materially different sen-
tence had the judge known that the Guidelines were advisory.
490 F.3d at 1084-85. Having considered Huerta-Pimental’s
argument, we conclude that Booker has no effect on the revo-
cation of supervised release. It is clear from Booker that there
is no Sixth Amendment Apprendi violation so long as the
Guidelines are advisory. 543 U.S. at 226-27.
[6] Because the revocation of supervised release and the
subsequent imposition of additional imprisonment is, and
always has been, fully discretionary, it is constitutional under
Booker. See U.S.S.G. ch. 7 (promulgating advisory policy
statements concerning violations of probation and supervised
release); 18 U.S.C. § 3583(e)(3) (authorizing, but not requir-
ing, revocation and subsequent imprisonment following a vio-
lation of supervised release conditions). Nor is there
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nonconstitutional Booker error in appellant’s case. Despite the
likelihood that the district court considered the Guidelines
mandatory when it imposed Huerta-Pimental’s original sen-
tence in 1998, it is implausible that, given their expressly
advisory nature in the context of a supervised release revoca-
tion proceeding, the district court would have considered
them mandatory at the 2003 revocation hearing.
Moreover, as above, Huerta-Pimental’s argument again
fails to engage Apprendi. We have held unequivocally that
imposition of imprisonment following the revocation of
supervised release is part of the original sentence authorized
by the fact of conviction and does not constitute additional
punishment beyond the statutory maximum. See United States
v. Liero, 298 F.3d 1175, 1178 (9th Cir. 2002) (affirming cir-
cuit precedent holding that “the punishment for violating the
conditions of supervised release is itself a part of the original
sentence”). Nor does a judge’s finding, by a preponderance of
the evidence, that defendant violated the conditions of super-
vised release raise Sixth Amendment concerns. There is no
right to a jury trial for such post-conviction determinations.
See Morrissey v. Brewer, 408 U.S. 471, 480-88 (1972) (hold-
ing that parole revocation proceedings require only basic due
process rather than the full protection of the Sixth Amend-
ment because they are “not part of a criminal prosecution”);
United States v. Hall, 419 F.3d 980, 985 n.4 (9th Cir. 2005)
(holding parole, probation, and supervised release are “consti-
tutionally indistinguishable” and thus, subject to the same
analysis).
[7] We note, again, that our analysis of Booker’s impact on
supervised release revocation comports with that of our sister
circuits that have addressed the issue. See Work, 409 F.3d at
492 (holding that, because the portions of the Guidelines deal-
ing with revocation of supervised release were deemed advi-
sory even before Booker and remain so, “resort to them,
cannot constitute Booker error’); United States v. McNeil, 415
F.3d 273, 276 (2d Cir. 2005) (concluding the supervised
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release revocation scheme “remains unaffected by Booker”);
United States v. Hinson, 429 F.3d 114, 116-117 (5th Cir.
2005) (holding that, because revocation is discretionary,
Booker’s Sixth Amendment concerns “do not exist with
regard to sentences imposed when supervised release is
revoked”); United States v. Coleman, 404 F.3d 1103, 1104
(8th Cir. 2005) (“Indeed, the advisory sentencing guidelines
scheme that Booker creates is precisely what prevailed before
Booker with respect to fixing penalties for violating the kind
of release conditions . . . [defendant] violated . . . .”).
V
[8] The district court’s ruling that Apprendi does not render
§ 3583 supervised release unconstitutional was correct. Super-
vised release, its revocation, and associated penalties are part
of the original sentence authorized by the fact of conviction,
none of which requires impermissible judicial fact-finding.
Nor does the revocation of supervised release run afoul of
either the Supreme Court’s holding in Booker or our own in
Ameline; it remains a valid part of the federal sentencing
scheme.
AFFIRMED.
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