U.S. v. Cordova

• Decision Date: 22 August 2006
• Docket Number: No. 05-6093.,No. 05-6094.,05-6093.,05-6094.
• Citation: 461 F.3d 1184
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Armando CORDOVA, II, Defendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1184

461 F.3d 1184

UNITED STATES of America, Plaintiff-Appellee, v. Armando CORDOVA, II, Defendant-Appellant.

No. 05-6093.

No. 05-6094.

United States Court of Appeals, Tenth Circuit.

August 22, 2006.

William P. Earley, Assistant Federal Public Defender (Paul Antonio Lacy, Assistant Federal Public Defender, on the briefs), Office of the Federal Public Defender for the Western District of Oklahoma, Oklahoma City, OK, for Appellant.

Mark A. Yancey, Assistant United States Attorney (Robert G. McCampbell, United States Attorney, with him on the briefs), Office of the United States Attorney for the Western District of Oklahoma, Oklahoma City, OK, for Appellee.

Before TACHA, Chief Circuit Judge, HENRY, and McCONNELL, Circuit Judges.

TACHA, Chief Circuit Judge.

On March 9, 2005, Defendant-Appellant Armando Cordova, II, stipulated to allegations by his probation officer that he failed to comply with the terms of his supervised release. Based on the stipulation, the District Court revoked Mr. Cordova's supervised release and sentenced him to 36 months' incarceration. On appeal, Mr. Cordova argues that the revocation of his supervised release violated his Sixth Amendment rights to indictment by a grand jury, to a jury trial, and to be found "guilty" of violating the terms of his supervised release beyond a reasonable doubt. He also argues that the sentence imposed by the District Court is unreasonable. We take jurisdiction under 28 U.S.C. § 1291 and AFFIRM.

I. BACKGROUND

In January 2000, Mr. Cordova was convicted of conspiracy to possess with intent to distribute 1,000 kilograms or more of marijuana and 5 kilograms or more of cocaine in violation of 21 U.S.C. §§ 841(a)(1) and 846 (hereinafter "first conviction"), and he was sentenced to 24 months' imprisonment and three years' supervised release. In August 2001, while serving his sentence of imprisonment, Mr. Cordova was convicted of aiding and abetting the attempted introduction of marijuana into a federal prison in violation of 18 U.S.C. §§ 1791(a)(1) and 2 (hereinafter "second conviction"), and he was sentenced to six months' imprisonment and three years' supervised release for that offense.

After completing his prison sentences, Mr. Cordova was released to supervision. His transition proved unsatisfactory, however, as evidenced by repeated violations of the terms of his supervised release. After providing Mr. Cordova with several opportunities to reform his behavior, the District Court, on March 25, 2003, revoked his supervised release and sentenced him to serve 12 months' incarceration for each of his two prior convictions, to be served consecutively. The District Court also imposed new terms of supervised release—3 years on the first conviction and 2 years on the second conviction, to be served concurrently. Thereafter, Mr. Cordova completed his term of imprisonment, was again released to supervision, and again failed to adjust to that supervision.

For a third time, Mr. Cordova appeared at a hearing before the District Court— this time, based on allegations that he violated the conditions of his supervised release by testing positive for cocaine use, failing to report for further drug testing, and failing to participate in a mandated therapy program at a halfway house. Mr. Cordova stipulated to the allegations, and the District Court revoked Mr. Cordova's supervised release. In doing so, the court did not make any factual findings related to Mr. Cordova's conduct while on supervised release, but instead relied solely upon Mr. Cordova's stipulations.

In setting the sentence for these most recent infractions, the court first noted that each of the violations to which Mr. Cordova stipulated were Grade C violations. See U.S. Sentencing Guidelines Manual ("U.S.S.G." or "Guidelines") § 7B1.1. Given Mr. Cordova's criminal history category, the court then determined the Guidelines range for violating supervised release as to the first conviction was 3 to 9 months' imprisonment with a statutory maximum of 24 months, and that the Guidelines range for violating supervised release as to the second conviction was 6 to 12 months' imprisonment with a statutory maximum of 12 months. See U.S.S.G. § 7B1.4; 18 U.S.C. § 3583(e)(3).¹ After acknowledging these ranges, the District Court sentenced Mr. Cordova to the statutory maximums—24 months as to the first conviction and 12 months as to the second conviction. See 18 U.S.C. § 3583(e)(3). The sentences were ordered to run consecutively. See 18 U.S.C. § 3584(a).

Mr. Cordova appeals his sentence on two grounds. Relying on Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000) and United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), he first argues that revocation of supervised release in its present form violates the Sixth Amendment guarantees to indictment by a grand jury, to a jury trial, and to be found "guilty" of violating the terms of his supervised release beyond a reasonable doubt.² Second, Mr. Cordova argues that his sentence was neither reasoned nor reasonable.

II. DISCUSSION

A. Sixth Amendment Challenge to Revocation of Supervised Release

Mr. Cordova's constitutional challenge is focused specifically on 18 U.S.C. § 3583(e)(3) and Fed.R.Crim.P. 32.1(b), which permit a judge to revoke a term of supervised release and impose a prison term in its stead based upon findings made by a preponderance of the evidence rather than beyond a reasonable doubt. Mr. Cordova maintains that this procedure is subject to the rule set forth in Apprendi—namely, that "[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt." 530 U.S. at 466, 120 S.Ct. 2348. In this way, he argues, 18 U.S.C. § 3583(e)(3) and Fed.R.Crim.P. 32.1(b) subvert his Sixth Amendment rights to indictment by a grand jury, a jury trial, and proof of his guilt beyond a reasonable doubt.

Mr. Cordova concedes that he did not raise these issues before the District Court. Accordingly, our review is for plain error. United States v. Burbage, 365 F.3d 1174, 1180 (10th Cir.2004); Fed. R.Crim.P. 52(b). "Plain error occurs when there is (1) error, (2) that is plain, which (3) affects substantial rights, and which (4) seriously affects the fairness, integrity, or public reputation of judicial proceedings." Id. We conclude that there is no error.

It is well-settled that supervised release is "part of the penalty for the initial offense," see Johnson, 529 U.S. at 700, 120 S.Ct. 1795, and that "once the original sentence has been imposed in a criminal case, further proceedings with respect to that sentence [have not been] subject to Sixth Amendment protections," United States v. Work, 409 F.3d 484, 491 (1st Cir.2005); see also Johnson v. United States, 529 U.S. 694, 698, 120 S.Ct. 1795, 146 L.Ed.2d 727 (2000) (noting that violations of supervised release need only be found by a judge by a preponderance of the evidence); Morrissey v. Brewer, 408 U.S. 471, 480, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972) (holding that "revocation of parole is 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. Carlton, 442 F.3d 802, 807 (2d Cir.2006) ("[T]he `full panoply of rights' due a defendant in a criminal prosecution does not apply to revocation hearings for parole, for probation, or for supervised release." (citations omitted)). Nevertheless, Mr. Cordova entreats this Court to revisit this issue in light of Apprendi and its progeny, Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002) (Sixth Amendment is violated when a judge, rather than a jury, determines the existence of aggravating factors when imposing the death penalty) and Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (Sixth Amendment is violated when a court, relying upon judge-found facts other than those of a prior conviction, mandatorily increases a defendant's sentence).

Following a similar challenge to the revocation of supervised release, the Second Circuit thoroughly explained why jury trial rights do not attach to revocation proceedings:

[A] sentence of supervised release by its terms involves a surrender of certain constitutional rights and this includes surrender of the due process rights articulated in Apprendi. The full panoply of procedural safeguards does not attach to revocation proceedings because the Supreme Court has "distinguished revocation proceedings from criminal prosecutions on the ground that a probationer already stands convicted of a crime." United States v. Brown, 899 F.2d 189, 192 (2d Cir.1990) (emphasis added).

Consequently, it is evident that the constitutional rights afforded a defendant subject to revocation of supervised release for violation of its conditions are not co-extensive with those enjoyed by a suspect to whom the presumption of innocence attaches. Given a prior conviction and the proper imposition of conditions on the term of supervised release, when a defendant fails to abide by those conditions the government is not then put to the burden of an adversarial criminal trial. Instead, there is, as in this case, a revocation of release hearing at which, as the Supreme Court instructs, neither the right to a jury trial, nor proof beyond a reasonable doubt is required. As the Supreme Court has explained in the context of parole, cf. Johnson, 529 U.S. at 710-11, 120 S.Ct. 1795, 146 L.Ed.2d 727 (noting "similarity" between supervised release and parole, citing United States v. Meeks, 25 F.3d 1117, 1121 (2d Cir.1994)), such proceedings "arise[] after the end of the criminal prosecution, including imposition of sentence .... Revocation deprives an individual, not of the absolute liberty to which every citizen is entitled, but only of the conditional liberty properly dependent on observance...