U.S. v. Salinas, 02-4008.

• Decision Date: 26 April 2004
• Docket Number: No. 02-4142.,No. 02-4008.,No. 02-4102.,02-4008.,02-4102.,02-4142.
• Citation: 365 F.3d 582
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Juan SALINAS, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

365 F.3d 582

UNITED STATES of America, Plaintiff-Appellee, v. Juan SALINAS, Defendant-Appellant.

No. 02-4008.

No. 02-4102.

No. 02-4142.

United States Court of Appeals, Seventh Circuit.

Argued May 13, 2003.

Decided April 26, 2004.

Stephen Ehlke (argued), Robert A. Anderson, Office of U.S. Attorney, Madison, WI, for Plaintiff-Appellee.

Daniel W. Hildebrand (argued), Dewitt, Ross & Stevens, Madison, WI, for Defendant-Appellant.

Before ROVNER, DIANE P. WOOD, and EVANS, Circuit Judges.

ILANA DIAMOND ROVNER, Circuit Judge.

The district court revoked Juan Salinas's supervised release and ordered him to serve a prison term of 24 months after he violated the terms of his release on multiple occasions. Salinas appeals, contending that the court's sentencing decision was tainted by an error in a violation report and that the 24-month sentence was plainly unreasonable. We affirm.

I.

Following his 1994 conviction for narcotics conspiracy, see 21 U.S.C. §§ 846 & 841(a)(1), the district court ordered Salinas incarcerated for a period of 54 months. Upon his release from prison in 1998, Salinas began a five-year period of supervised release in the Southern District of Texas. Standard conditions of his release required, inter alia, that Salinas refrain from committing any new local, state, or federal offenses, follow the instructions of his supervising probation officer ("Condition # 3"), and notify his probation officer within 72 hours of being arrested or questioned by a law enforcement officer ("Condition # 11"). R. 187 at 3, 4. Salinas's violations of these conditions led the district court first to modify the terms of his supervised release and ultimately to revoke it.

The district court modified Salinas's release on three separate occasions in 2000 and 2001. First, on March 13, 2000, the court ordered that Salinas participate in a domestic violence counseling program after he was convicted of assaulting his wife. Second, on August 31, 2001, the court ordered Salinas to spend 120 days in home confinement with electronic monitoring following his failure to timely notify his parole officer of his contact with a police officer and his failure to obtain permission to travel outside of his supervising district (the Southern District of Texas). Third, on November 19, 2001, the court ordered Salinas to spend 120 days in a community corrections center after he violated the restrictions of his court-ordered home confinement by failing to return to his residence at the hour required by his curfew.

Unfortunately, these modifications did not succeed in bringing Salinas into compliance with the terms of his supervised release. On May 21, 2002, Salinas's probation officer instructed him to have no contact with Marisela Gomez-Barranco ("Barranco"), whom he had dated earlier that year, after Barranco made a number of complaints to local police that Salinas was harassing and possibly stalking her. Condition # 3 of Salinas's release, as we have noted, required Salinas to follow his probation officer's instructions. Nonetheless, Salinas violated that condition on three occasions from June 19, 2002 to June 24, 2002 when he had contact with Barranco — once at a nightclub in McAllen, Texas and twice at her home in Mission, Texas. Following the third of these incidents, Salinas was contacted by Mission Police Officer J. Deleon and issued a criminal trespass warning. He did not report this contact to his probation officer within 72 hours as required by Condition # 11 of his release.

In view of Salinas's ongoing failure to comply with the terms of his release, the probation office filed a probation violation report and a supplemental violation report in support of a request that Salinas be arrested and returned to court to show cause why his release should not be revoked. Two aspects of these reports deserve mention. First, the supplemental report erroneously represented that the district court "ha[d] modified Salinas' supervised release on three occasions as a result of his assaultive behavior." R. 270 at 2. In fact, only the first modification had involved that type of behavior. Second, the reports suggest that two of the prohibited encounters between Salinas and Barranco involved violent behavior. The original report indicates that when Salinas had contact with Barranco on June 19, 2002, he grabbed and pulled her in an attempt to restrain her, causing Barranco to sustain bruising on her arm and leg and swelling around her wrist that were later visible to the investigating police officer. R. 269, attachment (Petition for Warrant or Summons for Offender Under Supervision) at 3 (No. 1D). The supplemental report describes another incident that took place on August 16, 2002 at a restaurant in McAllen. According to the report, Salinas approached Barranco and her husband, Juan Ginez ("Ginez"), at the restaurant and a fight ensued between Salinas and Ginez. When Barranco attempted to intervene by placing herself between the two, Salinas allegedly struck her on the right side of her head with a closed fist. R. 270 at 1. Salinas did not stipulate to the August 16 incident, and although he did stipulate to his contact with Barranco on June 19, he did not stipulate that Barranco was injured as a result of that contact.

Salinas was taken into custody and returned to the Western District of Wisconsin, where he ultimately entered into a written stipulation with the government acknowledging that he had had prohibited contact with Barranco on three occasions and that he had failed to report his contact with a police officer within 72 hours. R. 282 at 1-2. For its part, the government agreed that it would recommend to the court that it revoke Salinas's supervised release, sentence him to a prison term within the range recommended by the Sentencing Guidelines, and terminate further supervision. Id. at 2. The Guidelines designate the type of release violations to which Salinas had stipulated Grade C, the least serious of three categories. See U.S.S.G. § 7B1.1(a)(3)(B), p.s. That designation, coupled with Salinas's Category I criminal history, produced a recommended sentencing range of three to nine months in prison — the shortest recommended prison term included in the Guidelines' Revocation Table. Id. § 7B1.4(a), p.s.¹ Salinas expressly acknowledged in his stipulation that the district court would not be bound by the government's recommendation to sentence him within this range. R. 282 at 2. The district court was authorized by statute to impose a sentence of up to 36 months, given that his underlying conviction was for a Class B felony, see 18 U.S.C. § 3583(e)(3), and Salinas would later acknowledge this maximum when he appeared before the court. R. 280 at 3.

At the conclusion of a revocation and sentencing hearing on October 28, 2002, the district court (Hon. John C. Shabaz) revoked Salinas's release and ordered him to serve a two-year prison term to be followed by one year of supervised release. R. 280 at 11, 13. The court explained that its sentence "takes into account the defendant's repeated violations of not allowing — not following the instructions of the supervising probation officer and not reporting contacts with law enforcement within 72 hours," as well as his "continual history of committing violent acts against women." Id. at 11. As special conditions of the release that would follow his incarceration, Salinas was to undergo a mental health assessment and counseling "to address his propensity to stalk and assault women" and to spend 90 to 120 days in a community corrections center during which time he was to participate in a mental health program. Id. at 12-13. On the day following the hearing, the court issued a written order memorializing its revocation and sentencing decision and reiterating its reasons for sentencing Salinas as it had. R. 265. That order was docketed on October 30, 2002.

II.

We begin with a few words about our jurisdiction. Salinas has filed three notices of appeal, which this court consolidated at his request. He filed the first of these (No. 02-4008) on November 8, 2002, within ten days of the date that the written order revoking his supervised release and imposing a sentence was docketed. R. 267. That timely appeal supplies us with jurisdiction to review the revocation and sentencing order. On November 5, 2002, Salinas filed a motion in the district court seeking to correct or reduce his sentence pursuant to then-Rule 35(c) of the Federal Rules of Criminal Procedure. That provision, now found in Rule 35(a), allows a district court seven days in which to correct a sentence that was imposed as a result of "arithmetical, technical or other clear error." See Fed. R. Civ P. 35(a). The district court functionally denied Salinas's motion by not acting on it within seven days of the date that its revocation and sentencing order was entered on the docket, i.e., by November 7, 2002. See United States v. Wisch, 275 F.3d 620, 626 (7th Cir.2001). On November 22, 2002, Salinas filed a second notice of appeal (No. 02-4102) challenging the functional denial of his Rule 35 motion. R. 275. However, that appeal, as Salinas now concedes, was untimely. Salinas Reply Br. at 1. We therefore dismiss that appeal. On November 26, 2002, the district court issued an order noting that the time during which it could correct Salinas's sentence had expired and denying the motion for lack of jurisdiction, and that order was entered on the docket the following day. R. 277. Salinas filed his third notice of appeal (No. 02-4142) on December 2, 2002, seeking review of that order. R. 278. That appeal was timely filed. However, Salinas concedes that the district court lacked the power to correct his sentence as of November 26 and that it correctly denied his motion for lack of jurisdiction at that point. Salinas Reply Br. at 1; see United States v. Goode, 342 F.3d 741, 743 (7th Cir.2003). Accordingly we dismiss that appeal as well and turn to...