Argued and Submitted, March 7, 2014, Pasadena, California
Appeal from the United States District Court for the Southern District of California. D.C. No. 3:11-cr-03560-LAB-1. Larry A. Burns, District Judge, Presiding.
Matthew W. Pritchard (argued), Federal Defenders of San Diego, Inc., San Diego, California, for Defendant-Appellant.
Steven Lee (argued), Special Assistant United States Attorney; Laura E. Duffy, United States Attorney; Bruce R. Castetter, Assistant United States Attorney, Chief, Appellant Section Criminal Division, San Diego, California, for Plaintiff-Appellee.
Before: Alex Kozinski, Chief Judge, Susan P. Graber, Circuit Judge, and Charles R. Breyer,[*] Senior District Judge. Opinion by Judge Graber; Dissent by Judge Breyer.
GRABER, Circuit Judge
Defendant Fidel Castro-Verdugo was convicted of illegal reentry in 2011. At sentencing, the district court imposed a period of probation along with a stayed custodial sentence, thereby exceeding the court's authority under 18 U.S.C. § 3561(a)(3). In 2013, Defendant again was convicted of illegal reentry which, in addition to constituting a new crime, violated the conditions of his 2011 sentence of probation. On appeal from the probation revocation proceedings, Defendant argues that the district court in 2013 lacked jurisdiction because of the defect in the underlying 2011 sentence. Because Defendant never moved to correct the underlying sentence under 28 U.S.C. § 2255, he was in fact still serving a term of probation at the time of the new offense, so the district court in 2013 properly assumed jurisdiction under 18 U.S.C. § 3565(a). We therefore affirm.
FACTUAL AND PROCEDURAL HISTORY
Defendant is a Mexican citizen and national. In 2011, he pleaded guilty to illegal reentry, in violation of 8 U.S.C. § 1326. He was sentenced to six months' imprisonment and a five-year term of probation. The imposition of probation along with a custodial sentence was improper under 18 U.S.C. § 3561(a)(3), which precludes probation for a defendant who is sentenced to a term of imprisonment for the same offense. United States v. Forbes, 172 F.3d 675, 676 (9th Cir. 1999). Although the sentence imposed was clearly erroneous and Defendant was represented by counsel, Defendant did not move to vacate, amend, or correct the sentence.
Among the conditions of Defendant's 2011 probation were requirements that he (1) not violate any federal, state, or local laws and (2) not reenter the United States illegally. The court noted that Defendant had no criminal history but that he had already been removed, and told not to reenter illegally, about 30 times. As a condition of the plea agreement, Defendant waived the right to appeal or collaterally attack the court's judgment, except for a collateral attack predicated on ineffective assistance of counsel. The court stayed Defendant's custodial sentence, and he was removed.
In 2013, Defendant again pleaded guilty to illegal reentry, in violation of 8 U.S.C. § 1326. The district court sentenced Defendant to six months' imprisonment and three years' supervised release for the new offense. As part of his plea agreement,
Defendant again waived the right to appeal or collaterally attack the conviction or sentence, except for a collateral attack predicated on ineffective assistance of counsel.
The United States Probation Office petitioned the court for a warrant to revoke probation in connection with Defendant's violation of his 2011 probation agreement. At the probation revocation proceedings, Defendant objected to the 2013 district court's jurisdiction on the ground that the 2011 imposition of probation was improper under Forbes, 172 F.3d at 676. The district court concluded that it had jurisdiction to revoke Defendant's probation. The court did so and sentenced Defendant to a prison term of six months and one day, to run consecutively with his term of imprisonment for the new offense, plus one year of supervised release, to run concurrently with the term of supervised release for the new offense. Defendant timely appeals the probation revocation and associated sentence.
STANDARDS OF REVIEW
We review de novo the district court's assumption of jurisdiction over probation revocation proceedings. United States v. Daly, 839 F.2d 598, 599-600 (9th Cir. 1988). If jurisdiction was proper, we review for abuse of discretion the district court's sentence of supervised release. United States v. Daniels, 541 F.3d 915, 924 (9th Cir. 2008).
A. The District Court Had Jurisdiction to Revoke ...