U.S. v. Contreras-Martinez

• Decision Date: 01 June 2005
• Docket Number: No. 04-2072.,04-2072.
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Juan Carlos CONTRERAS-MARTINEZ, Defendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

409 F.3d 1236

UNITED STATES of America, Plaintiff-Appellee, v. Juan Carlos CONTRERAS-MARTINEZ, Defendant-Appellant.

No. 04-2072.

United States Court of Appeals, Tenth Circuit.

June 1, 2005.

COPYRIGHT MATERIAL OMITTED

Vicki Mandell-King, Assistant Federal Public Defender (Raymond P. Moore, Federal Public Defender, with her on the briefs), Denver, CO, for Defendant-Appellant.

Reeve Swainston, Assistant United States Attorney (David C. Iglesias, United States Attorney, and David N. Williams, Assistant United States Attorney, on the brief), Albuquerque, NM, for Plaintiff-Appellee.

Before SEYMOUR, BALDOCK and BRISCOE, Circuit Judges.

SEYMOUR, Circuit Judge.

Juan Carlos Contreras-Martinez appeals the district court's imposition of a consecutive sentence for his violation of supervised release. We affirm.

I.

On April 17, 1999, Mr. Contreras pled guilty in Arizona district court to one count of illegally reentering the United States after deportation subsequent to an aggravated felony conviction, in violation of 8 U.S.C. §§ 1326(a) and (b)(2). The court sentenced him to 51 months imprisonment followed by a 24-month term of supervised release. Mr. Contreras was released from federal custody on January 13, 2003, and deported to Mexico. His period of supervised release was to run from the date of his release until January 12, 2005.

On May 6, 2003, Mr. Contreras was arrested in New Mexico after he was again found to be in the United States illegally. He pled guilty once again, this time in the District of New Mexico, to illegal reentry after deportation subsequent to an aggravated felony conviction. An Arizona probation officer filed a petition to revoke Mr. Contreras' supervised release, contending he had violated his conditions of release by committing a federal offense during his term of supervision. Jurisdiction on the revocation petition was subsequently transferred to the District of New Mexico.

The New Mexico district court sentenced Mr. Contreras to a term of 30 months imprisonment on the illegal reentry charge. The court thereafter held a hearing on the revocation petition and found Mr. Contreras had violated his conditions of supervised release. The court sentenced him to 21 months for the violation of supervised release pursuant to U.S.S.G. § 7B1, to be served consecutively to the 30-month term the court had ordered for his most recent illegal reentry. On appeal, Mr. Contreras contends the district court erred by failing to impose concurrent sentences for his immigration and supervised release violations.

II.

In sentencing for a violation of supervised release, the court must consider "the applicable guidelines or policy statements issued by the Sentencing Commission...." 18 U.S.C. § 3553(a)(4)(B). One relevant guideline, U.S.S.G. § 5G1.3, is applicable to "Imposition of a Sentence on a Defendant Subject to an Undischarged Term of Imprisonment."

At the time of Mr. Contreras' sentencing, § 5G1.3(a) required a consecutive sentence when the defendant committed the instant offense while serving a term of imprisonment, or before the defendant began serving such a term. Section 5G1.3(b) required a concurrent sentence when "a term of imprisonment resulted from another offense that is relevant conduct to the instant offense of conviction." Section 5G1.3(c), a policy statement, applied in any other case involving an undischarged term of imprisonment, and authorized the district court to impose a sentence to run concurrently, partially concurrently, or consecutively to the undischarged sentence "to achieve a reasonable punishment." The parties agree subsection (a) did not apply here. Rather, Mr. Contreras contends subsection (b) mandated the imposition of a concurrent sentence because his illegal reentry and violation of supervised release sentences were based on the same underlying relevant conduct.

Because Mr. Contreras failed to argue at sentencing that the court was required, as a matter of law, to order the sentence it imposed for the supervised release violation to run concurrently with the sentence imposed for his illegal reentry, we review this claim for plain error. United States v. Hurlich, 348 F.3d 1219, 1220 (10th Cir.2003). The plain error test requires Mr. Contreras to demonstrate the district court (1) committed error, (2) that is plain, and (3) affects substantial rights. United States v. Olano, 507 U.S. 725, 732, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993). If Mr. Contreras meets his burden of establishing the first three prongs of the plain error test, we may exercise discretion to correct the error if it "seriously affect[s] the fairness, integrity or public reputation of judicial proceedings." Johnson v. United States, 520 U.S. 461, 469-70, 117 S.Ct. 1544, 137 L.Ed.2d 718 (1997) (quoting Olano, 507 U.S. at 736, 113 S.Ct. 1770). Here, however, we need not examine the second, third, or fourth prongs of the plain error test because we conclude the district court committed no error.

"U.S.S.G. § 5G1.3(b)'s central aim is to ensure no defendant is punished twice for the same crime." United States v. Moyer, 282 F.3d 1311, 1316 (10th Cir.2002) (internal quotation omitted). Accordingly, § 5G1.3(b) provides "credit[ ] for guidelines purposes [to] defendants who have already served time — generally in another jurisdiction — for the same conduct or course of conduct." United States v. Johnson, 40 F.3d 1079, 1082 (10th Cir.1994) (internal quotations omitted). We thus declined in Moyer to apply § 5G1.3(b) where a defendant's conduct resulted in revocation of a term of probation plus an additional sentence, because the original term of probation stemmed from a separate offense. 282 F.3d at 1317; see also United States v. Tisdale, 248 F.3d 964, 974, 976-77 (10th Cir.2001) (holding that § 5G1.3(c) provides a district court with discretion to sentence defendant consecutively or concurrently where conduct giving rise to the instant offense resulted in revocation of probation). Similarly, Mr. Contreras' conduct, his 2003 illegal reentry, resulted in revocation of his term of supervised release and an additional sentence because the original term of supervised release stemmed from a separate offense: his 1999 illegal reentry. Consequently, § 5G1.3(b) simply did not apply in the instant case.

Moreover, at the time of Mr. Contreras' sentencing, application note 3(C) to § 5G1.3(c) specifically provided that

[s]ubsection (c) applies in cases in which the defendant was on federal or state probation, parole, or supervised release at the time of the instant offense and has had such probation, parole, or supervised release revoked. Consistent with the policy set forth in Application Note 4 and subsection (f) of § 7B1.3 (Revocation of Probation or Supervised Release), the Commission recommends that the sentence for the instant offense be imposed consecutively to the sentence imposed for the revocation.

U.S.S.G. § 5G1.3, cmt. n. 3(C) (emphasis added).¹ This cross-reference makes it clear that § 7B1.3(f) is the more appropriate sentencing provision when a defendant's supervised release has been revoked.

In the Introduction to Chapter 7, Part A, of the guidelines, the Sentencing Commission states:

Under 28 U.S.C. § 994(a)(3), the Sentencing Commission is required to issue guidelines or policy statements applicable to the revocation of probation and supervised release. At this time, the Commission has chosen to promulgate policy statements only. These policy statements will provide guidance while allowing for the identification of any substantive or procedural issues that require further review. The Commission views these policy statements as evolutionary and will review relevant data and materials concerning revocation determinations under these policy statements. Revocation guidelines will be issued after federal judges, probation officers, practitioners, and others have the opportunity to evaluate and comment on these policy statements.

U.S.S.G. Ch. 7, pt. A. Consistent with this statement, we have recognized that the Chapter 7 provisions dealing with violations of supervised release are not mandatory sentencing guidelines; rather, they merely constitute "advisory" policy statements. United States v. Tsosie, 376 F.3d 1210, 1218 (10th Cir.2004). "Although the policy statements regarding revocation of supervised release are advisory rather than mandatory in nature, they must be `considered by the trial court in its deliberations concerning punishment for violation of conditions of supervised release.'" Id. (quoting United States v. Lee, 957 F.2d 770, 774 (10th Cir.1992)). We made clear in Tsosie that "we will not reverse [a revocation sentence imposed by the district court] if it can be determined from the record to have been reasoned and reasonable." Id.² See also United States v. Tedford, 405 F.3d 1159, 2005 WL 1023434, at *2 (10th Cir. May 3, 2005)

Our review of the record convinces us the district court in this case committed no error in exercising its discretion and sentencing Mr. Contreras to consecutive terms of imprisonment. The court received a memorandum from the Arizona probation office which stated: "Provisions of Chapter Seven, including the revocation range, are policy statements intended to provide guidance and are not binding on the Court. § 7A1." Rec., vol. II at 16. The memorandum stated on the next page:

In the case of a Grade B violation, any term of imprisonment imposed upon the revocation of supervised release shall be ordered to be served consecutively to any sentence of imprisonment that the defendant is serving, whether or not the sentence of imprisonment being served resulted from the conduct that is the basis of the revocation of supervised release. § 7B1.3(f).

Id. at 17. Notwithstanding the seemingly mandatory language of § 7B1.3(f), when the memorandum and the Chapter 7 provisions are read as a whole it is clear the sentencing court was informed that § 7B1.3(f) is merely an...