U.S. v. Soto-Olivas

• Decision Date: 05 January 1995
• Docket Number: No. 93-50863,SOTO-OLIVA,D,93-50863
• Citation: 44 F.3d 788
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Lorenzoefendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 788

44 F.3d 788

UNITED STATES of America, Plaintiff-Appellee, v. Lorenzo SOTO-OLIVAS, Defendant-Appellant.

No. 93-50863.

United States Court of Appeals Ninth Circuit.

Argued and Submitted Nov. 2, 1994.

Decided Jan. 5, 1995.

Jerome J. Haig, Deputy Federal Public Defender, Los Angeles, CA, for defendant-appellant.

Daniel P. Collins, Asst. U.S. Atty., Los Angeles, CA, for plaintiff-appellee.

Appeal from the United States District Court for the Central District of California.

Before: WIGGINS, KOZINSKI and THOMPSON, Circuit Judges.

DAVID R. THOMPSON, Circuit Judge:

Lorenzo Soto-Olivas appeals his conviction for illegally reentering the United States after deportation, in violation of 8 U.S.C. Sec. 1326(b)(2). He claims his prosecution was barred by the Double Jeopardy Clause. We have jurisdiction pursuant to 28 U.S.C. Sec. 1291, and we affirm.

I

On May 21, 1990, Soto-Olivas was convicted of distributing cocaine base within 100 feet of a playground, in violation of 21 U.S.C. Secs. 845(a) and 841(a)(1). He was sentenced to 36 months imprisonment, to be followed by six years of supervised release. As one of the conditions of his supervised release, the sentencing court ordered him to "comply with the rules and regulations of the [Immigration and Naturalization Service,] and if deported from this country under any circumstances, not to reenter the United States illegally."

Soto-Olivas was deported on February 25, 1992, after completing his prison term. On October 16, 1992, during his term of supervised release, he was arrested in Los Angeles County on auto theft charges. At a subsequent revocation hearing, he was sentenced to seven months imprisonment for violating the order for his supervised release that he not reenter the United States illegally.

On the day he was to be released from custody on the supervised release revocation, Soto-Olivas was indicted on the charge of illegally reentering the United States after deportation following conviction of an aggravated felony, in violation of 8 U.S.C. Sec. 1326(b)(2). The indictment was based on the same illegal reentry which prompted revocation of his term of supervised release.

Soto-Olivas moved to dismiss the indictment. He argued the indictment violated his rights under the Double Jeopardy Clause because it subjected him to prosecution and punishment for the same act of illegal reentry upon which revocation of his supervised release was based. While this double jeopardy challenge was pending, he entered a conditional guilty plea to the indictment. The district court rejected his double jeopardy challenge and sentenced him to 70 months imprisonment, to be followed by three years of supervised release. In this appeal, Soto-Olivas renews his double jeopardy challenge.

II

The Double Jeopardy Clause provides that no person shall "be subject for the same offence to be twice put in jeopardy of life or limb." U.S. Const., Amdt. 5. "This protection applies both to successive punishments and to successive prosecutions for the same offense." United States v. Dixon, --- U.S. ----, ----, 113 S.Ct. 2849, 2855, 125 L.Ed.2d 556 (1993).

Our prior case law establishes unambiguously that double jeopardy does not preclude criminal prosecution for conduct which also serves as the basis for a parole or probation revocation. See, e.g., United States v. Redd, 759 F.2d 699 (9th Cir.1985); Standlee v. Rhay, 557 F.2d 1303, 1304 (9th Cir.1977); Bible v. Arizona, 449 F.2d 111 (9th Cir.1971), cert. denied, 405 U.S. 994, 92 S.Ct. 1268, 31 L.Ed.2d 463 (1972). This is so because "revocation is not punishment for the subsequent events which violate the parole [or probation] and which may also constitute a separate crime." Standlee v. Rhay, 557 F.2d at 1306 (quoting Standlee v. Smith, 83 Wash.2d 405, 518 P.2d 721, 722 (1974)).

Confronted with this case law, Soto-Olivas argues revocation of supervised release, unlike parole or probation revocation, constitutes punishment for the act which causes the revocation, not for the original crime, and therefore triggers double jeopardy. He contends that in contrast to parole and probation supervised release is imposed in addition to the original sentence, not instead of it. Therefore, he argues, any imprisonment resulting from a supervised release violation cannot be part of the original sentence (which is executed in full by completion of the prescribed prison term), but must be punishment for the new act constituting the violation.

In support of this argument, Soto-Olivas points out that a defendant's total term of imprisonment, together with any period of supervised release imposed, may actually exceed the maximum period of incarceration permitted by statute for his substantive crime. United States v. Montenegro-Rojo, 908 F.2d 425 (9th Cir.1990). As a consequence, violation of a condition of supervised release may result in imprisonment for a period exceeding the statutorily authorized maximum. United States v. Purvis, 940 F.2d 1276 (9th Cir.1991); United States v. Mandarelli, 982 F.2d 11 (1st Cir.1992).

We reject Soto-Olivas's argument. It misconstrues the nature and purpose of supervised release. As we explained in Montenegro-Rojo, when Congress enacted the supervised release statute it sought "to replace a parole system in which the length of post-incarceration supervision was dependent upon the length of the original prison term with a supervised release system in which the length of such supervision is dependent solely upon the defendant's need for supervision after release from jail." Montenegro-Rojo, 908 F.2d at 432. Under the old parole system:

the anomalous situation could arise whereby a defendant in great need of post-incarceration supervision would get little whereas a defendant who did not need such supervision would get a great deal. Indeed, this disparity was almost assured by the parole system: better-behaved inmates, who presumably could handle life outside of prison on their own reasonably well, left prison sooner than worse-behaved inmates, but as a consequence were supervised for longer periods on the outside.

Id. at 433. With the new statute, Congress authorized courts to "tack a period of supervised release onto any term of imprisonment authorized by a substantive criminal statute, even a term near or at the maximum." Id. at 432.

By the plain language of the statute, supervised release, although imposed in addition to the period of incarceration, is "a part of the sentence." 18 U.S.C. Sec. 3583(a); see Montenegro-Rojo, 908 F.2d at 432. Congress' primary objective in enacting Sec. 3583 was to authorize a period of supervision, and perhaps imprisonment, beyond what is provided by the sentencing guidelines and substantive criminal laws. Thus, the entire sentence, including the period of supervised release, is the punishment for the original crime, and "it is the original sentence that is executed when the defendant is returned to prison after a violation of the terms" of his release. United States v. Paskow, 11 F.3d 873, 881 (9th Cir.1993). ¹

Indeed, because courts have wide discretion in fashioning a defendant's obligations during a term of supervised release, the act constituting a violation may not even be a crime. For example, courts may order defendants to support their dependents, work conscientiously at suitable employment, undergo medical or psychiatric treatment, or refrain from engaging in specified occupations. "If the individual may be punished for an action that is not of itself a crime, the rationale must be that the punishment is part of the sanction for the original conduct that was a crime." United States v. Meeks, 25 F.3d 1117, 1122 (2d Cir.1994).

III

Soto-Olivas's reliance on our decision in United States v. Schram, 9 F.3d 741 (9th Cir.), cert. denied, --- U.S. ----, 114 S.Ct. 482, 126 L.Ed.2d 433 (1993), is misplaced. In Schram, the defendant was sentenced to consecutive prison terms for violating the conditions of his supervised release and for the substantive crime which constituted the violation. We held the Ex Post Facto Clause was not violated when the defendant was required to serve his revoked supervised release term after completing his sentence for the substantive crime, even though the version of the Sentencing Guidelines authorizing imposition of consecutive sentences under these circumstances was not in effect on the date the defendant's supervised release was imposed. We based our decision on the view that "a violation of supervised release is, for purposes of determining the applicable version of the Sentencing Guidelines, an offense separate from the offense that led to the initial imprisonment and imposition of supervised release." 9 F.3d at 743. Therefore, we concluded, the new version of the Sentencing Guidelines was not "applied 'retroactively' because [it was] not applied to conduct completed prior to its enactment." Id.

The reach of Schram was limited by our decision in United States v. Paskow, 11 F.3d 873 (9th Cir.1993). ² There, we held the Ex Post Facto Clause prohibited application of an amendment to Sec. 3583, which imposed a mandatory minimum prison term for defendants who violate the terms of their supervised release by being in possession of a controlled substance, to a defendant who was originally sentenced before the effective date of the amendment. In doing so, we recognized that "revocation [of supervised release] and additional imprisonment[ ] are as much the consequence of the offender's underlying crime as is the initial term of imprisonment." Id. at 881 (quoting United States v. Flora, 810 F.Supp. 841, 843 (W.D.Ky.1993)). We specifically distinguished Schram on the ground that Schram "implicate[d] the relationship between the penalty for violation of supervised release and the penalty for a new or different offense committed while the defendant is on supervised release," while the amendment at issue in Paskow involved the extent to which a...