United States v. Castro-Verdugo

• Citation: 750 F.3d 1065
• Decision Date: 06 May 2014
• Docket Number: No. 13–50386.,13–50386.
• Parties: UNITED STATES of America, Plaintiff–Appellee, v. Fidel CASTRO–VERDUGO, Defendant–Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

750 F.3d 1065

UNITED STATES of America, Plaintiff–Appellee,

v.Fidel CASTRO–VERDUGO, Defendant–Appellant.

No. 13–50386.

United States Court of Appeals,Ninth Circuit.

Argued and Submitted March 7, 2014.

Filed May 6, 2014.

Matthew W. Pritchard (argued), Federal Defenders of San Diego, Inc., San Diego, CA, for Defendant–Appellant.

Steven Lee (argued), Special Assistant United States Attorney; Laura E. Duffy, United States Attorney; Bruce R. Castetter, Assistant United States Attorney, Chief, Appellant Section Criminal Division, San Diego, CA, for Plaintiff–Appellee.

Appeal from the United States District Court for the Southern District of California, Larry A. Burns, District Judge, Presiding.

Before: ALEX KOZINSKI, Chief Judge, SUSAN P. GRABER, Circuit Judge, and CHARLES R. BREYER,^* Senior District Judge. D.C. No. 3:11–cr–03560–LAB–1.

OPINION

GRABER, Circuit Judge:

Defendant Fidel Castro–Verdugo was convicted of illegal reentry in 2011. At sentencing, the district court imposed a period of probation along with a stayed custodial sentence, thereby exceeding the court's authority under 18 U.S.C. § 3561(a)(3). In 2013, Defendant again was convicted of illegal reentry which, in addition to constituting a new crime, violated the conditions of his 2011 sentence of probation. On appeal from the probation revocation proceedings, Defendant argues that the district court in 2013 lacked jurisdiction because of the defect in the underlying 2011 sentence. Because Defendant never moved to correct the underlying sentence under 28 U.S.C. § 2255, he was in fact still serving a term of probation at the time of the new offense, so the district court in 2013 properly assumed jurisdiction under 18 U.S.C. § 3565(a). We therefore affirm.

FACTUAL AND PROCEDURAL HISTORY

Defendant is a Mexican citizen and national. In 2011, he pleaded guilty to illegal reentry, in violation of 8 U.S.C. § 1326. He was sentenced to six months' imprisonment and a five-year term of probation. The imposition of probation along with a custodial sentence was improper under 18 U.S.C. § 3561(a)(3), which precludes probation for a defendant who is sentenced to a term of imprisonment for the same offense. United States v. Forbes, 172 F.3d 675, 676 (9th Cir.1999). Although the sentence imposed was clearly erroneous and Defendant was represented by counsel, Defendant did not move to vacate, amend, or correct the sentence.

Among the conditions of Defendant's 2011 probation were requirements that he (1) not violate any federal, state, or local laws and (2) not reenter the United States illegally. The court noted that Defendant had no criminal history but that he had already been removed, and told not to reenter illegally, about 30 times. As a condition of the plea agreement, Defendant waived the right to appeal or collaterally attack the court's judgment, except for a collateral attack predicated on ineffective assistance of counsel. The court stayed Defendant's custodial sentence, and he was removed.

In 2013, Defendant again pleaded guilty to illegal reentry, in violation of 8 U.S.C. § 1326. The district court sentenced Defendant to six months' imprisonment and three years' supervised release for the new offense. As part of his plea agreement, Defendant again waived the right to appeal or collaterally attack the conviction or sentence, except for a collateral attack predicated on ineffective assistance of counsel.

The United States Probation Office petitioned the court for a warrant to revoke probation in connection with Defendant's violation of his 2011 probation agreement. At the probation revocation proceedings, Defendant objected to the 2013 district court's jurisdiction on the ground that the 2011 imposition of probation was improper under Forbes, 172 F.3d at 676. The district court concluded that it had jurisdiction to revoke Defendant's probation. The court did so and sentenced Defendant to a prison term of six months and one day, to run consecutively with his term of imprisonment for the new offense, plus one year of supervised release, to run concurrently with the term of supervised release for the new offense. Defendant timely appeals the probation revocation and associated sentence.

STANDARDS OF REVIEW

We review de novo the district court's assumption of jurisdiction over probation revocation proceedings. United States v. Daly, 839 F.2d 598, 599–600 (9th Cir.1988). If jurisdiction was proper, we review for abuse of discretion the district court's sentence of supervised release. United States v. Daniels, 541 F.3d 915, 924 (9th Cir.2008).

DISCUSSION

A. The District Court Had Jurisdiction to Revoke Probation.

Defendant argues that the district court lacked jurisdiction to revoke his probation in 2013 because, when the district court imposed probation in 2011, it did so in conjunction with a sentence of imprisonment, which it lacked authority to do under 18 U.S.C. § 3561(a)(3). Forbes, 172 F.3d at 676. As an initial matter, the now-conceded defect in the 2011 sentence, although clear error, was not jurisdictional. “[J]urisdiction means today ... the courts' statutory or constitutional power to adjudicate the case.” United States v. Cotton, 535 U.S. 625, 630, 122 S.Ct. 1781, 152 L.Ed.2d 860 (2002) (internal quotation marks omitted). The district court in 2011 had jurisdiction over Defendant's federal offense under 18 U.S.C. § 3231. It had authority to impose a sentence following his conviction under 18 U.S.C. § 3551 but exceeded its statutory authority under 18 U.S.C. § 3561 by imposing probation along with a custodial sentence. A sentence imposed by a court that lacks jurisdiction and an excessive sentence are two different grounds for post-conviction relief. See, e.g., Hitchcock v. United States, 580 F.2d 964, 965 (9th Cir.1978) (enumerating the four distinct grounds for relief under 28 U.S.C. § 2255). “[A] rule should not be referred to as jurisdictional unless it governs a court's ... subject-matter or personal jurisdiction ... even if important and mandatory....” Henderson ex rel. Henderson v. Shinseki, ––– U.S. ––––, 131 S.Ct. 1197, 1202, 179 L.Ed.2d 159 (2011) (citations omitted).

But regardless of the nature of the underlying error, the validity of the 2011 sentence is not properly before us. “An appeal challenging a probation revocation proceeding is not the proper avenue through which to attack the validity of the original sentence.” United States v. Gerace, 997 F.2d 1293, 1295 (9th Cir.1993); see also United States v. Simmons, 812 F.2d 561, 563 (9th Cir.1987) (“[A]n appeal from a probation revocation is not the proper avenue for a collateral attack on the underlying conviction.”). Gerace controls. As here, the defendant in Gerace argued on an appeal from a probation revocation proceeding that there were legal defects in the imposition of the original sentence of probation. ¹ We held that we could not reach the merits of the defendant's argument, because any challenge to the underlying conviction should be brought as a 28 U.S.C. § 2255 petition. See Gerace, 997 F.2d at 1295. This holding is consistent with the rule from other circuits that have addressed the question. See United States v. Lewis, 498 F.3d 393, 395 (6th Cir.2007); United States v. Almand, 992 F.2d 316, 317–18 (11th Cir.1993); Atehortua v. Kindt, 951 F.2d 126, 128–29 (7th Cir.1991); United States v. Francischine, 512 F.2d 827, 828 (5th Cir.1975). And, as we discuss in more detail below, the rule is required by 28 U.S.C. § 2255.

Defendant argues that he is not attacking the original 2011 sentence, but is instead challenging the jurisdiction of the district court in 2013 to conduct a probation revocation hearing. Because he was not serving a “valid” term of probation at the time of the probation revocation hearing, Defendant reasons, the district court lacked jurisdiction under 18 U.S.C. § 3565(a) to revoke his probation. But Defendant was serving a term of probation at the time of the probation revocation proceedings, albeit one imposed in error. He is attacking the validity of the original sentence, which must be done in a § 2255 petition, not in a probation revocation proceeding. Gerace, 997 F.2d at 1295. Indeed, our holding in Gerace recognizes that an underlying sentence may not always be valid, but that a court tasked with conducting or reviewing probation revocation proceedings may not investigate the validity of the original sentence. Id.; see also Simmons, 812 F.2d at 563 (“[A] court should consider the petition for probation revocation as if the underlying conviction was unquestioned.”).

In short, the only criteria necessary to create jurisdiction over probation revocation proceedings are (1) that the defendant still be serving a term of probation and (2) that the defendant violate its conditions. Under 18 U.S.C. § 3565(a)(2), “[i]f the defendant violates a condition of probation at any time prior to the expiration or termination of the term of probation, the court may ... revoke the sentence of probation and resentence the defendant.” Because Defendant had not moved to vacate, correct, or amend his 2011 sentence under 28 U.S.C. § 2255, and the term imposed had not expired, he was still serving a term of probation when he violated the conditions of his probation, thus satisfying the criteria to create jurisdiction in 2013.

Nothing in the two cases that Defendant cites, United States v. Schmidt, 99 F.3d 315 (9th Cir.1996), overruled on other grounds by United States v. Palomba, 182 F.3d 1121, 1123 (9th Cir.1999), and United States v. Vargas–Amaya, 389 F.3d 901 (9th Cir.2004), suggests that Gerace does not control here. Schmidt and Vargas–Amaya considered for how long a district court retains jurisdiction to conduct probation revocation or parole revocation hearings, respectively. Title 18 U.S.C. § 3565(a) gives the district court authority to continue or revoke probation “at any time prior to the expiration or termination of the term of probation,” while 18 U.S.C. §...