U.S. v. Huerta-Pimental, 04-50037.

• Citation: 445 F.3d 1220
• Decision Date: 24 April 2006
• Docket Number: No. 04-50037.,04-50037.
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Lazaro HUERTA-PIMENTAL, aka Jose Huerta, Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

445 F.3d 1220

UNITED STATES of America, Plaintiff-Appellee, v. Lazaro HUERTA-PIMENTAL, aka Jose Huerta, Defendant-Appellant.

No. 04-50037.

United States Court of Appeals, Ninth Circuit.

Submitted April 12, 2006.^*

Filed April 24, 2006.

Angela M. Krueger, Steven F. Hubachek, Federal Defenders of San Diego, Inc., San Diego, CA, for the defendant-appellant.

Carol C. Lam, United States Attorney, Joseph H. Huynh, Assistant United States Attorney, San Diego, CA, for the plaintiff-appellee.

Appeal from the United States District Court for the Southern District of California; Napoleon A. Jones, District Judge, Presiding. D.C. No. CR-97-03128-NAJ.

Before PREGERSON, TASHIMA, and PAEZ, Circuit Judges.

PAEZ, Circuit Judge.

Huerta-Pimental appeals the revocation of his term of supervised release and the subsequent imposition of additional 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 original imposition of supervised release as a part of his sentence was unconstitutional under Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), and Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (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 revocation proceedings under the Supreme Court's decision in United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005).¹

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 additional term of imprisonment is discretionary, neither violates Booker. Accordingly, we affirm.

I

In 1998, the District Court for the Southern District of California 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 hearing, he argued that the court lacked jurisdiction to revoke his 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 constitutionality 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 imposition 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 supervised release and impose an additional term of imprisonment. We disagree.

Huerta-Pimental's argument rests on a mistaken conception of the nature of supervised release within the federal sentencing 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, 120 S.Ct. 1795, 146 L.Ed.2d 727 (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 mechanism "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 mandated 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 various 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 violated any of its conditions. Id.

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 statutory maximum be submitted to a jury and proved beyond a reasonable doubt, unless such facts are admitted by a defendant or found by a judge following a defendant's knowing and voluntary waiver. See Apprendi, 530 U.S. at 476, 120 S.Ct. 2348; Blakely, 542 U.S. at 303, 309, 124 S.Ct. 2531.

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 supervised release, see 8 U.S.C. § 1326 (providing that after conviction "such alien shall be fined under title 18, United States Code, imprisoned. . . or both"), including it as part of a sentence 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 settled that supervised release, whether or not mandated by the 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.

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, however, 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).

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 impermissible 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...