USA v. Jose Zabala-Molina

Filing

UNPUBLISHED OPINION FILED. [09-41216 Reversed] Judge: HRD , Judge: FPB , Judge: JWE. Mandate pull date is 11/23/2010 for Appellant Jose Zabala-Molina; denying motion to remand case filed by Appellee USA [6664721-2] [09-41216]

USA v. Jose Zabala-Molina 09-41216 Case:

Document: 00511282078 Page: 1 Date Filed: 11/02/2010

Doc. 0

IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED
November 2, 2010 N o . 09-41216 Lyle W. Cayce Clerk

U N IT E D STATES OF AMERICA, P la in t if f -A p p e lle e v. J O S E ZABALA-MOLINA, D e fe n d a n t -A p p e lla n t

A p p e a l from the United States District Court for the Southern District of Texas U S D C No. 2:09-CR-1001-1

B e fo r e DeMOSS, BENAVIDES, and ELROD, Circuit Judges. P E R CURIAM:* J o s e Zabala-Molina appeals the district court's revocation of his term of s u p e r v is e d release. He argues that the district court did not have the authority t o either revoke the term of supervised release or modify the original sentence. Because our precedent precludes the modification of an original sentence in a r e v o c a t io n proceeding, we REVERSE.

Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4.

*

Dockets.Justia.com

Case: 09-41216 Document: 00511282078 Page: 2 Date Filed: 11/02/2010

No. 09-41216 I. BACKGROUND

I n 2001 in the Western District of Texas, Jose Zabala-Molina (Zabala) was fo u n d guilty of failure to appear for sentencing in a drug-trafficking case and w a s sentenced to 24 months in prison and three years of supervised release. The s e n t e n c in g court ordered that Zabala's sentence of imprisonment and term of s u p e r v is e d release run consecutively to the concurrent 97-month terms of prison a n d three-year terms of supervised release imposed on the two counts in the d r u g -tr a f f ic k i n g case. The court stated specifically that "[t]he five years [of] s u p e r v is e d release in the marijuana case and three years of supervised release in the failure-to-appear case will run consecutively, for a total of eight years." This Court dismissed as frivolous Zabala's appeal from the failure-to-appear ju d g m e n t upon his retained attorney's motion to withdraw pursuant to Anders v . California, 386 U.S. 738 (1967). United States v. Zabala-Molina, 65 F. App'x 5 0 8 (5th Cir. 2003). J u r is d ic t io n over the cases was transferred to the Southern District of T e x a s in 2009. In December 2009, the Government filed a petition to revoke the t h r e e terms of supervised release imposed in the failure-to-appear and the drugt r a ffic k in g cases, based on a new illegal-reentry conviction. The Government a s s e r t e d that Zabala had begun to serve his terms of supervised release on D e c e m b e r 28, 2008. At the revocation hearing, Zabala's counsel questioned whether the fa ilu r e -t o -a p p e a r term of supervised release was ripe for revocation because it h a d been ordered to run consecutively to the concurrent five-year terms in the d r u g -tr a ffic k in g case, which had not yet expired. The judge explained that, even t h o u g h the failure-to-appear judgment stated that the term of supervised release w a s to run consecutively to the terms in the drug-trafficking case, "[y]ou can't h a v e a supervised release consecutive . . . [a]nd it only makes sense that the s u p e r v is e d release from the 2000 [failure-to-appear] case is concurrent with the 2

Case: 09-41216 Document: 00511282078 Page: 3 Date Filed: 11/02/2010

No. 09-41216 o t h e r case." Counsel and the probation officer agreed with the district court that Z a b a la was serving three different terms of supervised release. Zabala pleaded true to violating the conditions of supervised release by c o m m it t in g the 2009 illegal-reentry offense. The court revoked all three terms o f supervised release and sentenced Zabala to seven months in prison in the fa ilu r e -t o -a p p e a r case, to run consecutively to the concurrent seven-month terms in prison on both counts in the drug-trafficking case, and to be followed by 29 m o n th s of supervised release in the failure-to-appear case and 53 months of s u p e r v is e d release in the drug-trafficking case. The court also sentenced Zabala t o 70 months in prison in the illegal-reentry case, to be followed by three years o f supervised release. Zabala filed a timely notice of appeal. II. A N A L Y S IS

Z a b a la argues that the district court did not have jurisdiction to modify the o r ig in a l judgment in the failure-to-appear case by interpreting it as imposing a c o n c u r r e n t , rather than consecutive, term of supervised release or to revoke the c o n s e c u t iv e term of supervised release that had not yet begun to run.1 He a r g u e s that the revocation of the term of supervised release in the fa ilu r e -t o -a p p e a r case and resulting sentence should be vacated. The

G o v e r n m e n t agrees that the revocation and sentence should be vacated. However, the Government also asks this Court to remand the case to the S o u th e r n District of Texas and instruct that the case be returned to the Western D is t r ic t of Texas so that the district court can amend the judgment by imposing c o n c u r r e n t terms of supervised release. Although this Court typically reviews the district court's decision to revoke s u p e r v is e d release for abuse of discretion, United States v. Grandlund, 71 F.3d 5 0 7 , 509 (5th Cir. 1995), it reviews de novo a district court's jurisdiction to
1

Zabala is not appealing the revocation of the drug-trafficking terms of supervised

release.

3

Case: 09-41216 Document: 00511282078 Page: 4 Date Filed: 11/02/2010

No. 09-41216 r e v o k e supervised release, United States v. Molina-Gazca, 571 F.3d 470, 472 (5th C ir . 2009). T h e supervised release statute states that a "term of supervised release c o m m e n c e s on the day the person is released from imprisonment and runs c o n c u r r e n t ly with any Federal, State, or local term of probation or supervised r e le a s e or parole for another offense to which the person is subject or becomes s u b je c t during the term of supervised release." 18 U.S.C. § 3624(e).2 This Court h a s interpreted § 3624(e) as mandating that a prisoner's "supervised release t e r m must run concurrently to any other supervision to which he is subject." United States v. Hernandez-Guevara, 162 F.3d 863, 877 (5th Cir. 1998). "Even w h e n federal law requires consecutive terms of imprisonment, the supervised r e le a s e term `is to run concurrently with any other term of supervised release im p o s e d .'" Id. (quoting U.S.S.G. § 5G1.2, cmt. n.2(C)). The parties agree that the consecutive term of supervised release imposed in the failure-to-appear case was an illegal sentence. They also agree that, even i f illegal, the sentence cannot be challenged or modified in a revocation p r o c e e d in g . The parties are correct. "It is by now well-established that a

d e fe n d a n t may not use the appeal of a revocation of supervised release to c h a lle n g e an underlying conviction or original sentence." United States v. Willis,

The failure-to-appear statute mandates that the term of imprisonment--not the term of supervised release--for that offense shall be consecutive to the sentence of imprisonment for any other offense. 18 U.S.C. § 3146(b)(2). The general sentencing statute provides that: The court, in imposing a sentence to a term of imprisonment for a felony or a misdemeanor, may include as a part of the sentence a requirement that the defendant be placed on a term of supervised release after imprisonment, except that the court shall include as a part of the sentence a requirement that the defendant be placed on a term of supervised release if such a term is required by statute. . . . 18 U.S.C.A. § 3583(a). However, neither statute addresses whether terms of supervised release may be imposed to run consecutively.

2

4

Case: 09-41216 Document: 00511282078 Page: 5 Date Filed: 11/02/2010

No. 09-41216 5 6 3 F.3d 168, 170 (5th Cir. 2009); accord United States v. Hinson, 429 F.3d 114, 1 1 6 (5th Cir. 2005) ("Hinson may not, however, use an appeal of the revocation o f her supervised release to attack her original sentence directly or collaterally in this proceeding."); United States v. Moody, 277 F.3d 719, 721 (5th Cir. 2001) (" M o o d y has never challenged the language of her indictment or the drug q u a n t it y used in calculating her original sentence, either by direct appeal or c o lla t e r a l review. She may not now use her new term of supervised release as a v e h ic le to do so.").3 D istric t courts are authorized to modify previously imposed sentences only in limited circumstances, see 18 U.S.C. § 3582(c), none of which were present in Z a b a la 's revocation proceeding. Willis, Hinson, and Moody dictate that the d is tr ic t court was bound by the original, albeit illegal, consecutive term of s u p e r v is e d release. A d d it io n a lly , as previously set forth, the Government asks this Court to r e m a n d and instruct the district court to transfer the failure-to-appear case back t o the Western District with further instructions to amend the judgment and im p o s e the term of supervised release to run concurrently with the supervised r e le a s e imposed in the drug-trafficking case. The Government cites no authority t h a t allows this procedure. Moreover, our precedent provides that a revocation p r o c e e d in g is not the proper vehicle in which to challenge the original sentence. Thus, granting the Government's request would contravene our precedent. III. C O N C L U S IO N

A c c o r d in g ly , the judgment of revocation with respect to the term of s u p e r v is e d release on the failure-to-appear case is REVERSED. The

We note that in cases on direct appeal, this Court has modified or vacated judgments imposing consecutive terms of supervised release. See United States v. Myers, 104 F.3d 76, 81 (5th Cir. 1997) (vacating and remanding for resentencing).

3

5

Case: 09-41216 Document: 00511282078 Page: 6 Date Filed: 11/02/2010

No. 09-41216 G o v e r n m e n t 's request for remand is DENIED. Our ruling does not affect the revocations of the terms of supervised release on the two drug convictions.

6