U.S. v. Ortuno-Higareda

• Decision Date: 08 June 2006
• Docket Number: No. 04-10257.,04-10257.
• Citation: 450 F.3d 406
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Raul ORTUÑO-HIGAREDA, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

450 F.3d 406

UNITED STATES of America, Plaintiff-Appellee, v. Raul ORTUÑO-HIGAREDA, Defendant-Appellant.

No. 04-10257.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted February 7, 2005.

Filed June 8, 2006.

Francisco León, Tucson, AZ, for defendant-appellant Raul Ortuño-Higareda.

Christina M. Cabanillas, Appellate Chief (on rehearing), and Nathan D. Leonardo, Assistant United States Attorney, Tucson, AZ, for plaintiff-appellee United States of America.

Appeal from the United States District Court for the District of Arizona; John M. Roll, District Judge, Presiding. D.C. No. CR-00-00786-1-JMR.

Before J. CLIFFORD WALLACE, JOHNNIE B. RAWLINSON, and JAY S. BYBEE, Circuit Judges.

ORDER AND OPINION

RAWLINSON, Circuit Judge.

ORDER

The petition for panel rehearing is GRANTED. The opinion and concurrence/dissent filed on August 26, 2005, are withdrawn. The superseding opinion and dissent will be filed concurrently with this order. Further petitions for rehearing or for rehearing en banc may be filed.

Opinion

Raul Ortuño-Higareda ("Ortuño") challenges the revocation of his supervised release. Because we hold that the district court had jurisdiction to revoke Ortuño's supervised release, that there was sufficient evidence to prove that Ortuño violated the conditions of his supervised release and that he had imputed knowledge of those conditions, we AFFIRM.

I BACKGROUND

Ortuño was convicted in the United States District Court for the District of Arizona of illegal re-entry after deportation, in violation of 8 U.S.C. § 1326(a). He was sentenced to an eighteen-month term of imprisonment followed by thirty-six months of supervised release. Condition one of Ortuño's supervised release stated: "You shall not commit another federal, state, or local crime during the term of supervision." Ortuño was also required to comply with two special conditions, the first of which stated: "If deported, you shall not re-enter the United States without legal authorization."

At Ortuño's sentencing hearing on August 4, 2000, the court specifically informed Ortuño that if he reentered the United States within three years after serving his sentence, he would be in violation of the conditions of his release. The court further noted that such a violation could result in Ortuño's imprisonment for another three years. When asked if he understood, Ortuño answered, "[y]es."

Ortuño was released from federal custody on August 13, 2001. He was deported that same day. In such a case, the inmate is released directly into the custody of the Department of Immigration and Naturalization Services (INS).¹ No probation officer meets with the inmate following release.

On May 1, 2003, Ortuño was apprehended by the Border Patrol at or near Jote Mesa, California and arrested for reentering the country without authorization. A criminal complaint was filed against Ortuño in the United States District Court for the Southern District of California. Subsequently, a Petition to Revoke Supervised Release and a Warrant for Arrest were filed in the District of Arizona. The Petition to Revoke Supervised Release charged that Ortuño violated the release conditions imposed when he was sentenced.

An evidentiary hearing on the petition to revoke supervised release was held before a magistrate judge. At the hearing, the government presented the testimony of Border Patrol Agent George Allen. During his testimony, Agent Allen was in possession of Ortuño's original A-file.² Contained in that A-file and admitted into evidence was the arrest report, or Record of Deportable/Inadmissible Alien, for Ortuño, dated May 1, 2003. According to Agent Allen's testimony, the report indicated that Ortuño's entry status was without authorization and that his last known entry into the United States occurred on May 1, 2003, at or near Jote Mesa, California. The report also contained a statement describing Ortuño's apprehension by the Border Patrol.

Another document in the A-file was the criminal complaint filed in the United States District Court for the Southern District of California. Agent Allen testified that the complaint contained a similar description of Ortuño's apprehension. Finally, the A-file contained the results of a fingerprint examination. The results reflected a match between the fingerprints taken from Ortuño and fingerprints previously lodged in Ortuño's A-file.³

On cross-examination, counsel for Ortuño asked Agent Allen whether there was any record of a conviction for the May 1, 2003 illegal re-entry charge. Agent Allen testified that he confirmed telephonically that afternoon that there was a conviction, but that the judgment was not yet in the A-file. Agent Allen clarified that a copy of the judgment would ordinarily not be placed in the A-file until Ortuño was deported. On re-direct examination, Agent Allen explained that earlier that afternoon, he confirmed with the San Diego Border Patrol Prosecution Unit that judgment of conviction was entered on August 29, 2003.

Ortuño moved to dismiss the Petition to Revoke on the bases that: 1) the government failed to present sufficient evidence that Ortuño violated the conditions of his supervised release absent proof of a conviction; and 2) Ortuño was never provided a written copy of the supervised release conditions. The magistrate judge issued a Report and Recommendation (R & R) finding that Ortuño violated the conditions of his supervised release and was given actual notice of the condition that he not re-enter the country illegally. The district court adopted the R & R, revoked Ortuño's supervised release, and sentenced him to a twenty-four month term of imprisonment.

On appeal, Ortuño renews his argument that his supervised release should not have been revoked because: 1) the government did not produce sufficient evidence that he violated Standard Condition One; and 2) he did not receive the conditions of supervised release in writing. In addition, he contends for the first time that, under United States v. Vargas-Amaya, 389 F.3d 901 (9th Cir.2004), the district court lacked jurisdiction to revoke his supervised release because the warrant pursuant to which he was arrested was not "supported by Oath or affirmation" as required by the Fourth Amendment's Warrant Clause.

II STANDARDS OF REVIEW

"The district court's decision to revoke a term of supervised release is reviewed for an abuse of discretion." United States v. Verduzco, 330 F.3d 1182, 1184 (9th Cir.2003) (citation omitted). Whether a defendant received due process at a proceeding to revoke supervised release is reviewed de novo. United States v. Havier, 155 F.3d 1090, 1092 (9th Cir. 1998). "We review the district court's exercise of jurisdiction de novo." United States v. Powell, 24 F.3d 28, 30 (9th Cir. 1994) (citation omitted).

III DISCUSSION

A. The district court had jurisdiction to revoke Ortuño's supervised release.

We address Ortuño's jurisdictional argument first. See Kyocera Corp. v. Prudential-Bache Trade Servs., Inc., 341 F.3d 987, 995 n. 12 (9th Cir.2003) (en banc) (stating that "we are required to resolve [jurisdictional] questions first"), cert. dismissed, 540 U.S. 1098, 124 S.Ct. 980, 157 L.Ed.2d 810 (2004).

It is undisputed that the warrant which precipitated Ortuño's arrest was not "supported by Oath or affirmation." The question is whether this deficiency divested the district court of jurisdiction to revoke his supervised release. Although Ortuño did not raise this issue in the district court (Vargas-Amaya had not yet been decided), "we review questions of jurisdiction even if raised for the first time on appeal." Powell, 24 F.3d at 30.

In Vargas-Amaya, we interpreted 18 U.S.C. § 3583(i), which provides:

The power of the court to revoke a term of supervised release for violation of a condition of supervised release, and to order the defendant to serve a term of imprisonment . . ., extends beyond the expiration of the term of supervised release for any period reasonably necessary for the adjudication of matters arising before its expiration if, before its expiration, a warrant or summons has been issued on the basis of an allegation of such a violation.

We held that "a district court's jurisdiction to revoke supervised release can be extended beyond the term of supervision under § 3583(i), based upon a warrant issued during the term of supervision, only if the warrant was issued `upon probable cause, supported by Oath or affirmation,' as required by the Fourth Amendment." Vargas-Amaya, 389 F.3d at 907.

Here, unlike in Vargas-Amaya, the district court's jurisdiction was not premised upon section 3583(i) because Ortuño's supervised release was revoked before expiration of his supervised release term. See United States v. Schmidt, 99 F.3d 315, 318 (9th Cir.1996) ("[T]he conditions of section 3583(i) apply only when the revocation of supervised release occurs after the term of supervised release has expired."), overruling on other grounds recognized in United States v. Palomba, 182 F.3d 1121, 1123 (9th Cir.1999). Since this case does not involve section 3583(i), Vargas-Amaya's interpretation of that provision is irrelevant.

In Schmidt, we explained that a district court has jurisdiction to revoke a supervised release term before expiration of that term "even if no warrant or summons was issued in accordance with 18 U.S.C. § 3583(i)." Id. at 319. The structure of the supervised release statute buttresses the conclusion we reached in Schmidt. 18 U.S.C. § 3583(e)(3) provides that the court may, after considering certain factors, "revoke a term of supervised release. . . if the court, pursuant to the Federal Rules of Criminal Procedure applicable to revocation of . . . supervised release, finds by a preponderance of the evidence that the defendant violated a condition of supervised release." The section 3583(e)(3) authority to revoke supervised release, unlike that in section 3583(i), is not conditioned upon the...