U.S. v. Gonzalez

• Decision Date: 03 May 2001
• Docket Number: No. 00-40572,00-40572
• Citation: 250 F.3d 923
• Parties: (5th Cir. 2001) UNITED STATES OF AMERICA, Plaintiff - Appellee v. MODESTO GONZALEZ, Defendant - Appellant
• Court: U.S. Court of Appeals — Fifth Circuit

Page 923

250 F.3d 923 (5th Cir. 2001)

UNITED STATES OF AMERICA, Plaintiff - Appellee v. MODESTO GONZALEZ, Defendant - Appellant

No. 00-40572

UNITED STATES COURT OF APPEALS, FIFTH CIRCUIT

May 3, 2001

Appeal from the United States District Court for the Southern District of Texas

Before KING, Chief Judge, and ALDISERT^* and BENAVIDES, Circuit Judges.

KING, Chief Judge:

Defendant-Appellant Modesto Gonzalez appeals from the district court's imposition of three consecutive terms of imprisonment following the revocation of his concurrent terms of supervised release. For the following reasons, we AFFIRM.

I. FACTUAL AND PROCEDURAL BACKGROUND

On November 21, 1997, pursuant to a plea agreement, Defendant-Appellant Modesto Gonzalez pleaded guilty to three counts of impersonating an officer or employee of the United States, in violation of 18 U.S.C. § 912. On January 29, 1998, the district court sentenced Gonzalez to serve three concurrent terms of twenty-seven months in prison and, thereafter, to continue his sentence by serving three concurrent terms of twelve months supervised release.

Gonzalez was released from prison on November 19, 1999, and began his concurrent terms of supervised release. On April 21, 2000, the U.S. Probation Office filed a superseding¹ Petition for Warrant for Offender Under Supervision, alleging another violation of 18 U.S.C. § 912, together with charges of assault and leaving the Southern District of Texas without permission.

On May 22, 2000, the district court held a hearing on the superseding petition. At the hearing, Gonzalez stood silent to each allegation, but pleaded true to the charge of leaving the jurisdiction without permission. Following the testimony of one witness and the submission of affidavits from other witnesses, the district court concluded that the allegations in the petition were true, revoked Gonzalez's three terms of supervised release, and sentenced Gonzalez to three consecutive twelve-month terms of imprisonment.

Gonzalez timely appealed, challenging the propriety of the consecutive sentences, together with the district court's alleged failures to consider certain sentencing factors and to state in open court its reasoning for the sentences.

II. STANDARD OF REVIEW

This court "will uphold a sentence unless it (1) was imposed in violation of law, (2) resulted from an incorrect application of the guidelines, (3) was outside the guideline range and is unreasonable, or (4) was imposed for an offense for which there is no applicable sentencing guideline and is plainly unreasonable." United States v. Pena, 125 F.3d 285, 286 (5th Cir. 1997) (internal quotations omitted) (quoting United States v. Teran, 98 F.3d 831, 836 (5th Cir. 1996)); see also United States v. Deavours, 219 F.3d 400, 402 (5th Cir. 2000). Because there are no applicable guidelines for sentencing after revocation of supervised release, see U.S. Sentencing Guidelines Manual ch. 7, pt. A, cmt. 1 ("At this time, the Commission has chosen to promulgate policy statements only."), this court will uphold a sentence unless it is in violation of the law or plainly unreasonable. See United States v. Stiefel, 207 F.3d 256, 259 (5th Cir. 2000); Pena, 125 F.3d at 287. In making this determination, the court reviews de novo the district court's interpretation of the sentencing statutes. See United States v. Teran, 98 F.3d 831, 835 (5th Cir. 1996); United States v. Mathena, 23 F.3d 87, 89 (5th Cir. 1994).

III. THE IMPOSITION OF CONSECUTIVE SENTENCES UPON REVOCATION OF CONCURRENT TERMS OF SUPERVISED RELEASE

Gonzalez contends that the district court's revocation of his terms of supervised release and its imposition of three consecutive terms of imprisonment resulted in a sentence that violates the law and is plainly unreasonable. Relying upon language in United States v. Bachynsky, 934 F.2d 1349, 1353 (5th Cir. 1991) (en banc), overruling on other grounds recognized by United States v. Watch, 7 F.3d 422 (5th Cir. 1993), that "prison terms following revocation of supervised release are served concurrently," Gonzalez asserts that the consecutive sentences should be vacated.

Gonzalez also argues that the relevant statutes, 18 U.S.C. §§ 3624(e)² and 3583(e)(3),³ should be interpreted to preclude consecutive prison sentences after revocation of concurrent terms of supervised release. The Government responds that, under 18 U.S.C. § 3584(a),⁴ the district court had the authority and the discretion to impose consecutive sentences upon the revocation of Gonzalez's concurrent terms of supervised release. We agree.

Addressing first Gonzalez's reliance upon the language contained within Bachynsky, we note that the court's statement that "prison terms following revocation of supervised release are served concurrently" was not dispositive language in that case.⁵ See 934 F.2d at 1253. Indeed, the Bachynsky decision did not concern the revocation of terms of supervised release. Instead, the court in that case was posing a hypothetical to demonstrate that the district court's failure to admonish the defendant regarding the effect of a term of supervised release did not affect the defendant's substantial rights. The court concluded that the district court's failure was harmless because, "assum[ing] arguendo" the "'worst case' hypothesis," Bachynsky's sentence would still be less than the statutory maximum, and therefore, Bachynsky's substantial rights were not affected. See id. Accordingly, while the language in Bachynsky may be considered persuasive authority, it does not control our resolution of the issue on appeal. See Ayoub v. INS, 222 F.3d 214, 215 (5th Cir. 2000) ("Dictum can be persuasive authority."); Soc'y of Separationists, Inc. v. Herman, 939 F.2d 1207, 1211 (5th Cir. 1991) ("Dicta, however, is persuasive authority only, and is not binding."). Instead, we join the Courts of Appeals for the Fourth, Eighth, Ninth, Tenth, and Eleventh Circuits and conclude that the district court was well within its authority under § 3584 to impose consecutive sentences upon its revocation of Gonzalez's concurrent terms of supervised release. See United States v. Rose, 185 F.3d 1108, 1110 (10th Cir. 1999); United States v. Jackson, 176 F.3d 1175, 1178 (9th Cir. 1999); United States v. Johnson, 138 F.3d 115, 118 (4th Cir. 1998); United States v. Quinones, 136 F.3d 1293, 1294-95 (11th Cir. 1998); United States v. Cotroneo, 89 F.3d 510, 513 (8th Cir.), cert. denied, 519 U.S. 1018 (1996).

Regarding Gonzalez's statutory arguments, he contends that because § 3624(e)⁶ requires that multiple terms of supervised release run concurrently, the prison sentences imposed upon revocation of those supervised release terms should also run concurrently. We note, however, that there is no case law or statutory support for Gonzalez's assertion that the wording of § 3624(e) requires terms of imprisonment following revocation of concurrent terms of supervised release to run concurrently. By its terms, § 3624(e) deals solely with the imposition of supervised release, not the imposition of sentences following its revocation. See 18 U.S.C. § 3624(e) (providing that a term of supervised release "commences on the day the person is released from imprisonment" and is to run concurrently with any other term of supervised release); see also Johnson, 138 F.3d at 118; Cotroneo, 89 F.3d at 513. Therefore, the district court was correct in relying upon § 3584 to determine whether the resulting multiple terms of imprisonment were to be served concurrently or consecutively. See id. § 3584(a); see also Jackson, 176 F.3d at 1178; Johnson, 138 F.3d at 118 (determining that § 3584 controls the imposition of multiple sentences following revocation of terms of supervised release); Quinones, 136 F.3d at 1294-95; Cotroneo, 89 F.3d at 512 ("The decision to impose a consecutive or concurrent sentence upon revocation of supervised release is committed to the sound discretion of the district court.").

Next, Gonzalez argues that the district court's power to alter the concurrent nature of simultaneously imposed supervised release terms is "[s]ignificantly missing" from the list of the court's powers in § 3583(e)(3)⁷ and that the same subsection narrows the district court's discretion in sentencing supervised release terms. We disagree. First, we conclude that the district court "acted within the confines of . . . § 3583(e)(3) [by] revok[ing] Quinones's term of supervised release." Quinones, 136 F.3d at 1295. Furthermore, Gonzalez was originally convicted of three class E felonies and was initially sentenced to multiple terms of supervised release. As noted, however, Gonzalez argues that the limiting language contained within subsection (e)(3), that "a defendant may not be required to serve . . . more than one year in any other case[, e.g., a class E felony,]" 18 U.S.C. § 3583(e)(3), means that the district court could sentence him to a maximum of only one year. We believe that § 3583(e)(3) does not limit to only one year Gonzalez's total time of imprisonment upon revocation of multiple terms of supervised release. See Jackson, 176 F.3d at 1177-78 (rejecting the defendant's argument that the language in § 3583(e) limits the amount of time that a defendant may spend in prison following a revocation of supervised release). Instead, "a close reading of the statute" reveals that the limiting language "refers to [the district court's discretion upon revocation of a term of supervised release] to go beyond the original supervised release term, capping the term of incarceration to the class of felony originally committed." Id. at 1178. Accordingly, because Gonzalez had three such terms of supervised release, the district court was within its authority to "revoke [the three terms] and sentence [Gonzalez] to a term of imprisonment for each violation." Quinones, 136 F.3d at 1295; see also Cotroneo, 89 F.3d at 513 (interpreting § 3583(e)(3) and stating that "the District Court acted...