U.S. v. Arbizu, 04-40644.
| Citation | 431 F.3d 469 |
| Decision Date | 28 November 2005 |
| Docket Number | No. 04-40644.,04-40644. |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Wilbert Martin ARBIZU, Defendant-Appellant. |
| Court | United States Courts of Appeals. United States Court of Appeals (5th Circuit) |
James Lee Turner, Asst. U.S. Atty., Houston, TX, for U.S.
Marjorie A. Meyers, Fed. Pub. Def., Timothy William Crooks, Asst. Fed. Pub. Def., Hector Anthony Casas, Houston, TX, for Arbizu.
Appeal from the United States District Court for the Southern District of Texas.
Before DAVIS, SMITH and DENNIS, Circuit Judges.
In 2001, Wilbert Arbizu pleaded guilty of illegally reentering the United States and was sentenced to a prison term followed by a three-year term of supervised release. As a condition of the supervised release, Arbizu was not again to reenter the country illegally. In 2004, while still under supervised release, Arbizu was convicted of another illegal reentry and sentenced to a two-year prison term. Because he had violated the terms of his existing supervised release by illegally reentering, the district court revoked Arbizu's supervised release and imposed an additional one-year sentence for the 2001 illegal reentry.
Arbizu asserts that he cannot be held liable for violating the terms of his supervised release because he did not receive written notice of the conditions of the release as required by 18 U.S.C. §§ 3583(f) and 3603(1). The government concedes that it cannot prove compliance with the statutory notice requirements, but it argues that Arbizu had actual notice of his supervised release conditions despite its non-compliance and that such notice is sufficient to hold him liable for violating those conditions.
A district court may revoke a term of supervised release on finding, by a preponderance of the evidence, that the defendant violated a condition of supervised release. See 18 U.S.C. § 3583(e)(3). A district court's revocation of supervised release is reviewed for abuse of discretion. United States v. McCormick, 54 F.3d 214, 219 (5th Cir.1995).
Whether failure to provide written notice of the terms of supervised release automatically invalidates a revocation of such release if the defendant received actual notice of the conditions is an issue of first impression in this circuit. The statutes are silent on the question.
Every other circuit that has confronted this issue has held that the government's failure to provide the notice required by the statutes does not limit the district court's authority to revoke supervised release where the defendant had actual notice of the release terms. See United States v. Ortega-Brito, 311 F.3d 1136, 1138 (9th Cir.2002); United States v. Felix, 994 F.2d 550, 551 (8th Cir.1993); United States v. Ramos-Santiago, 925 F.2d 15, 17 (1st Cir.1991).
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State v. Shannon
...unaware of the terms and conditions of his DAG[P]." Petitioner reiterates the ICA dissent's argument that "[i]n United State's [sic] v. Arbizu, 431 F.3d 469 (5th Cir.2005), the United States Court of Appeals for the Fifth Circuit noted that every other circuit court to address this issue ha......
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...a written statement is harmless. See United States v. Felix, 994 F.2d 550, 551–52 (8th Cir.1993); see also United States v. Arbizu, 431 F.3d 469, 470–71 (5th Cir.2005) (per curiam); United States v. Ortega–Brito, 311 F.3d 1136, 1138 (9th Cir.2002); United States v. Ramos–Santiago, 925 F.2d ......
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...release and send him back to prison for violating conditions of the release that he had no way of knowing existed.” U.S. v. Arbizu, 431 F.3d 469, 470 (5th Cir. 2005). the Government argues that actual notice was sufficient for Coates to understand the terms of his 2006 supervised release. (......
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...has the discretion to revoke the previous sentence and impose a term of imprisonment. See 18 U.S.C. § 3583(e)(3); United States v. Arbizu, 431 F.3d 469, 470 (5th Cir.2005). The district court may impose any sentence that falls within the appropriate statutory maximum term of imprisonment al......