U.S. v. Olivares-Martinez, OLIVARES-MARTINE

• Decision Date: 12 August 1985
• Docket Number: No. 85-1010,OLIVARES-MARTINE,D,85-1010
• Citation: 767 F.2d 1135
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Leonardoefendant-Appellant. Summary Calendar.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 1135

767 F.2d 1135

UNITED STATES of America, Plaintiff-Appellee, v. Leonardo OLIVARES-MARTINEZ, Defendant-Appellant.

No. 85-1010

Summary Calendar.

United States Court of Appeals, Fifth Circuit.

Aug. 12, 1985.

Nancy B. Barohn, Asst. Federal Public Defender, San Antonio, Tex., for defendant-appellant.

Helen M. Eversberg, U.S. Atty., Sidney Powell, Daniel E. Maeso, Asst. U.S. Attys., San Antonio, Tex., for plaintiff-appellee.

Appeal from the United States District Court for the Western District of Texas.

Before WILLIAMS, JOLLY and HILL, Circuit Judges.

ROBERT MADDEN HILL, Circuit Judge:

Appellant, Leonardo Olivares-Martinez appeals from the district court's order denying his Motion to Correct Illegal Sentence. The district court had reinstated Olivares-Martinez' previously probated sentence consecutively, rather than concurrently, to the sentence imposed on the conviction that caused his probation to be revoked. On appeal Olivares-Martinez asserts that in doing so the district court exceeded its sentencing authority under 18 U.S.C. Sec. 3653; "increased" his sentence in violation of the Fifth Amendment prohibition against double jeopardy; and violated the ex post facto clause of the United States Constitution. Because we find these assertions meritless, we affirm.

I. Procedural History

On April 25, 1983, Olivares-Martinez pleaded guilty in the United States District Court for the Western District of Texas to one count of attempting the transport of an illegal alien in the United States contrary to 8 U.S.C. Sec. 1324(a)(2). He was sentenced to a five year prison term. The district court only required, however, that he be confined for a period of six months; execution of the remaining sentence was suspended and Olivares-Martinez was placed on five years probation.

On March 23, 1984, after completing the six month prison term for his Texas conviction, Olivares-Martinez was arrested in Arkansas, again for a violation of attempting the transport of an illegal alien. On May 30, 1984, following a plea of guilty to that charge in the United States District Court for the Western District of Arkansas, Olivares-Martinez was sentenced to a three year prison term. Thereafter, in response to Olivares-Martinez' Arkansas conviction, the district court in Texas revoked his probation and reinstated forty-two months of the fifty-four month sentence remaining on his Texas conviction. In its resentencing order, the district court expressly directed that Olivares-Martinez' reinstated sentence run consecutively to the intervening three year sentence imposed on his Arkansas conviction.

On October 22, 1984, Olivares-Martinez filed a motion to "Correct Illegal Sentence" pursuant to Fed.R.Crim.P. 35(a) which the district court denied. Olivares-Martinez then filed a timely notice of appeal.

II. Sentencing Authority

We are called upon to determine whether the district court by reinstating Olivares-Martinez' sentence consecutive to the three year sentence of the district court in Arkansas exceeded its authority granted by 18 U.S.C. Sec. 3653. ¹ Pursuant to that statute, the extent of a court's authority to sentence a defendant after revoking his probation depends upon the nature of the defendant's original sentence. If the court initially suspended imposition of the sentence, upon revoking probation it may subsequently impose any sentence which might originally have been imposed. Id. If, however, the court suspended execution of the sentence, its subsequent authority is limited to either reinstating the original sentence, or to imposing any lesser sentence. See Roberts v. United States, 320 U.S. 264, 64 S.Ct. 113, 88 L.Ed. 41 (1943); United States v. McDonald, 611 F.2d 1291, 1294 (9th Cir.1980); United States v. Nagelberg, 413 F.2d 708, 710 (2nd Cir.1969), cert. denied, 396 U.S. 1010, 90 S.Ct. 569, 24 L.Ed.2d 502 (1970).

In this case, the district court originally imposed a five year sentence. Olivares-Martinez was then required to serve a six month prison term with execution of the remaining 54 months suspended. Upon subsequently revoking Olivares-Martinez' probation, the court reinstated only 46 months although section 3653 would have permitted reinstatement of the entire remaining period. Thus, because Olivares-Martinez' reinstated sentence was less than his original sentence, the district court's resentencing decision was clearly consistent with its authority under section 3653.

Olivares-Martinez asserts that the district court improperly increased his original sentence by reinstating it consecutive to the intervening sentence. His argument, however, does not sufficiently articulate how the reinstated sentence increased the punishment for his original criminal conduct. Although the precise issue has not been addressed in this Circuit, there is little question that a district court may reinstate "a sentence upon revocation of a probation so that it is 'served consecutive to a federal sentence for an intervening crime.' " United States v. Wingender, 711 F.2d 869, 870 n. 2 (9th Cir.1983) (quoting United States v. Lustig, 555 F.2d 751, 753 (9th Cir.1977) (per curiam), cert. denied, 434 U.S. 1045, 98 S.Ct. 889, 54 L.Ed.2d 796 (1978)); United States v. Tacoma, 199 F.2d 482, 483 (2d Cir.1952); cf. United States v. Newton, 698 F.2d 770, 772 (5th Cir.1983). Further, we note that consecutive sentencing is an appropriate mechanism for imposing distinct punishment for separate criminal acts, Lustig, 555 F.2d at 753, and that a defendant has no right to have concurrent sentences imposed for two totally unrelated offenses. See Albernaz v. United States, 450 U.S. 333, 344, 101 S.Ct. 1137, 1145, 67 L.Ed.2d 275 (1981); United States v. Dovalina, 711 F.2d 737, 739 (5th Cir.1983); United States v. Moreno, 630 F.2d 338, 339 (5th Cir.1980).

To support his assertion that imposition of the reinstated sentence consecutive to the intervening sentence exceeded the district court's authority, Olivares-Martinez cites Ralston v. Robinson, 454 U.S. 201, 216 n. 9, 102 S.Ct. 233, 243 n. 9, 70 L.Ed.2d 345 (1981), for the proposition that "a concurrent sentence of a given length will result in a shorter ultimate sentence than a consecutive sentence of that [same] length." This statement on its face, however, is irrelevant. Since Olivares-Martinez' original sentence was never a concurrent sentence, he clearly sustained no increased incarceration under his original conviction when it was subsequently reinstated consecutive to the sentence on the intervening conviction. Moreover, a more accurate characterization of the sentencing discussion in Ralston reveals language actually supporting the reinstated sentence in this case.

The dissenting opinion asserts that our interpretation of congressional intent is inconsistent with the common-law rule that "a punishment already partly suffered be not increased." That common-law rule simply does not apply when Congress has provided a court with the power to modify a sentence in light of changed circumstances. For example, a court may impose a suspended sentence and probation, under the general probation statute or under the YCA. If the defendant violates the terms of his probation, the court may "increase" the punishment by requiring him to serve the initial sentence. Here, the statute permits a judge to modify the conditions of a YCA sentence if the offender is convicted of a subsequent adult crime and if further YCA treatment would be futile. In each case, the sentencing statute invests the court with the power to modify conditions in light of the subsequent offense.

Ralston, 454 U.S. at 218 n. 10, 102 S.Ct. at 244 n. 10 (citations omitted).

We have no doubt that the second sentencing judge could have modified respondent's YCA treatment terms by imposing a concurrent sentence. The judge did not, however, avail himself of that option.

It would be anomalous to permit a concurrent sentence to modify the terms of the remainder of a YCA sentence but not to permit a consecutive term to have that effect, since a concurrent sentence is traditionally imposed as a less severe sanction than a consecutive sentence. Moreover, a consecutive sentence may be the preferable form of sentence for an offense committed while serving a sentence for a prior offense.

Id. at 216 n. 9, 102 S.Ct. at 243 n. 9 (citations omitted) (emphasis in original).

Finally, the two remaining cases relied upon by Olivares-Martinez, United States v. Henry, 709 F.2d 298 (5th Cir.1983) (en banc), and United States v. Williams, 651 F.2d 644 (9th Cir.1981), similarly fail to support his position. Unlike the resentencing pursuant to a probation revocation at issue here, the resentencing addressed in both Henry and Williams arose solely because the defendants had successfully appealed some aspect of their original convictions. Thus, their sentence modification was not attributed to intervening criminal conduct as here; rather, it resulted from the defendants' exercise of their right to appeal. Also, unlike this case, the original sentences were initially imposed as concurrent to other sentences and thereafter modified to run consecutively. The defendants therefore sustained increased incarceration under their original conviction when the sentence initially imposed was subsequently reinstated. Both Henry and Williams are distinguishable.

The analysis urged by Olivares-Martinez in this case arose in both Williams and Henry in the due process context of North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969). The necessary predicate for analysis under Pearce, however, is an increased penalty that results from a defendant's successful challenge to his conviction or sentence. United States v. Henry, 709 F.2d at 315. Such a predicate does not exist here. Moreover, Pearce does not preclude an increased sentence if it is sufficiently based upon the defendant's conduct after his original sentencing. Pearce, 395 U.S. at 723-26, 89...