UNITED STATES of America, Plaintiff-Appellee, v. Raul ORTUÑO-HIGAREDA, Defendant-Appellant.
No. 04-10257.
United States Court of Appeals, Ninth Circuit.
Filed Aug. 26, 2005.
Argued and Submitted Feb. 7, 2005.
421 F.3d 917
Moreover, pursuant to United States v. Ameline, 409 F.3d 1073, 1084 & n. 8 (9th Cir.2005) (en banc), we ordered Carter to indicate whether he wished to pursue resentencing on the theory that nonconstitutional error affected his sentencing proceeding.3 See also United States v. Moreno-Hernandez, 419 F.3d 906, 915, 2005 WL 1964483, at *8 (9th Cir. Aug.17, 2005). Carter responded, through counsel, that he does not.
Therefore, remand for resentencing is unnecessary, and we affirm the district court‘s imposition of the sentence enhancement.
AFFIRMED.
Nathan D. Leonardo, Assistant United States Attorney, Tucson, AZ, for plaintiff-appellee, United States of America.
Before WALLACE, RAWLINSON, and BYBEE, Circuit Judges.
OPINION
WALLACE, Senior Circuit Judge.
Raul Ortuño-Higareda (Ortuño) appeals from the district court‘s judgment revoking his term of supervised release and sentencing him to a twenty-four month term of imprisonment. We have jurisdiction over this timely appeal pursuant to
I.
In 2000, Ortuño was charged in the United States District Court for the District of Arizona with illegally re-entering the United States after deportation, in violation of
Ortuño was later released from federal custody and deported. On May 1, 2003, Ortuño was apprehended by United States Border Patrol Agents near Otay Mesa, California. A criminal complaint was filed in the United States District Court for the Southern District of California charging Ortuño with a violation of
Allegation 1: Violation of Standard Condition 1: You shall not commit another federal, state, or local crime during the term of supervision. Grade B violation, § 7B1.1(a)(2).
On or about May 1, 2003, Ortuno-Higareda illegally entered and/or was found in the United States, in the Southern District of California, without legal authorization, after having been denied admission, excluded, deported or removed from the United States on August 13, 2001, via San Ysidro, California, in violation of8 U.S.C. § 1326(a) , Deported Alien Found in the United States. This is evidenced by his arrest by a U.S. Border Patrol Agent on May 1, 2003.
At an evidentiary hearing on the Revocation Petition held before a magistrate judge, Border Patrol Agent George Allen was in possession of Ortuño‘s original “A-file,” a file kept on an alien containing arrest reports, conviction documents, warrants of deportation, immigration judge orders, photographs, and fingerprints. Agent Allen testified about the A-file documents related to the alleged May 1, 2003 illegal re-entry. He also testified that, although he was not in possession of a record of a conviction for that illegal re-entry, he had been informed that afternoon by the San Diego Border Patrol Prosecution Unit that a judgment of conviction had been entered.
Probation Officer Assistant Beatriz Castillo testified that in immigration-related cases, individuals would be taken into custody immediately after sentencing. Once the term of imprisonment was served, the individual would usually be released to what was then the Immigration and Naturalization Service. Castillo explained, “[w]e never see them following their release from custody.” She also testified that she had no information that the conditions of supervised release were discussed with Ortuño or that Ortuño received anything in writing regarding those conditions. She stated, however, that the judge “usually advises” the defendant that he is bound by those conditions at the time of sentencing.
Ortuño‘s counsel argued that the government had not proved that Ortuño had violated Standard Condition One as alleged in the Revocation Petition, because there was no copy of the judgment of conviction for the 2003 illegal re-entry and Agent Allen‘s hearsay testimony that Ortuño had been convicted was insufficient. He also contended that Ortuño‘s supervised release should not be revoked because there was no evidence that Ortuño had been provided a written copy of the supervised release conditions.
In his Report and Recommendation (R & R), the magistrate judge concluded that the government had met its burden to prove by a preponderance of the evidence that Ortuño committed a federal criminal offense as alleged in the Revocation Petition, notwithstanding the absence of a copy of the judgment of conviction for the 2003 illegal re-entry charge. As for Ortuño‘s argument concerning the lack of written notice of the supervised release conditions, the magistrate judge reasoned:
From the testimony of Beatriz Castillo, it would appear that the probation officer does not give the Defendant a written statement of his supervised release conditions in cases, such as this, where the defendant is deported immediately upon release from custody. This practice does not comply with the express requirement of
18 U.S.C. § 3583(f) . Nonetheless, in this case it was a special condition of supervised release that, “if deported, you shall not re-enter the United States without legal authorization.” The Defendant would have been verbally advised of this special condition by the sentencing judge. Defendant had actual notice that he was not to re-enter the United States illegally, and therefore the revocation based on that conduct is permissible. United States v. Ortega-Brito, 311 F.3d 1136, 13138[sic] (9th Cir.2002).
The magistrate judge found that Ortuño (1) “violated his conditions of supervised release as alleged in the petition” and (2) “had actual notice that the conduct in issue constituted a violation of his condition of supervised release.”
Ortuño raised two objections to the R & R: (1) Agent Allen‘s hearsay testimony was insufficient to prove that Ortuño was convicted of illegal re-entry and (2) there was no evidence that Ortuño received the proper notice of the supervised release conditions. Ortuño‘s counsel advised the court that he had requested a transcript of the sentencing hearing at which supervised release was imposed to determine whether Ortuño received oral notice at that time. He urged the district court to review the transcript upon arrival to determine whether “actual notice” of the supervised release conditions was provided, instead of relying, as the magistrate judge seemingly had, on the “practice” of judges to notify defendants orally of such conditions at sentencing. The district court entered an order adopting the R & R and making the same two findings that the magistrate judge made. Four days later, a transcript of the sentencing hearing was filed with the district court indicating that Ortuño had been advised of Special Condition One, but not Standard Condition One. Nevertheless, the district court subsequently entered a judgment revoking Ortuño‘s supervised release and sentenced him to a twenty-four-month term of imprisonment. This judgment was entered before Ortuño‘s supervised release term was scheduled to expire.
II.
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
A.
It is undisputed that the warrant which precipitated Ortuño‘s arrest was not “supported by Oath or affirmation.” The question is whether this deficiency divest-
In Vargas-Amaya, we interpreted
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
Here, unlike in Vargas-Amaya, the district court‘s jurisdiction was not premised upon
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
We acknowledge that certain language in a Vargas-Amaya footnote could be read to suggest that the requirements of the Warrant Clause apply even when an arrest occurs during the term of supervised release. See Vargas-Amaya, 389 F.3d at 905 n. 2. Given our holding in Schmidt and the structure of the supervised release statute, we do not read this language to establish the proposition that noncompliance with the Warrant Clause creates a jurisdictional defect where revocation occurs before expiration of the su-
B.
With the jurisdiction issue settled, we address the merits of Ortuño‘s challenges to the revocation of his supervised release. “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). “We review a district court‘s application of the supervised release statute de novo. We review a district court‘s factual findings at the sentencing phase for clear error.” United States v. Lomayaoma, 86 F.3d 142, 146 (9th Cir.1996) (citations omitted).
We first determine whether revocation of supervised release was an abuse of discretion because Ortuño received no notice, written or oral, that he was subject to Standard Condition One. Cf. United States v. Foster, 500 F.2d 1241, 1244 (9th Cir. 1974) (where defendant “was not informed in any way” that certain duties were conditions of his probation, his failure to comply with those duties could not “be a predicate for revoking his probation“). If so, we will not need to reach Ortuño‘s challenge to the sufficiency of the evidence.
instruct a probationer or a person on supervised release, who is under his supervision, as to the conditions specified by the sentencing court, and provide him with a written statement clearly setting forth all such conditions[.]
The court shall direct that the probation officer provide the defendant with a written statement that sets forth all the conditions to which the term of supervised release is subject, and that is sufficiently clear and specific to serve as a guide for the defendant‘s conduct and for such supervision as is required.
The government concedes that Ortuño was not given written notice of his supervised release conditions. However, we have held that, “where a releasee received actual notice of the conditions of his supervised release,” a failure to adhere to Congress’ obvious intent that written notice be provided “will not automatically invalidate the revocation of ... release based upon a violation of such conditions.” United States v. Ortega-Brito, 311 F.3d 1136, 1138 (9th Cir.2002); see also United States v. Tapia-Marquez, 361 F.3d 535, 536 (9th Cir.2004). “Therefore, we must determine whether [Ortuño] received actual notice of the conditions, the violations of which formed the basis for the revocation of his supervised release.” Ortega-Brito, 311 F.3d at 1138.
Ordinarily, materials not before the district court are not considered in our
The transcript of the sentencing hearing states:
THE COURT: ... So the record can show that it‘s the judgment of the Court that the defendant is committed to the custody of the Bureau of Prisons for a period of 18 months, that he shall serve a 36 month term of supervised release with the standard conditions plus the special condition that the defendant is not to enter the United States without proper documentation.
. . . .
. . . . If you are deported, then it‘s up to you to try to get admitted legally into the country again.
MR. ORTUNO-HIGAREDA: Okay.
THE COURT: But for the—if you reenter the United States, you‘re going to be—within three years after you do the 18 months, you will be violating your conditions of probation, you will be brought before the Court for violation of supervised release, and you could do another three years for entering illegally.
MR. ORTUNO-HIGAREDA: Okay. Thank you, your Honor.
THE COURT: Do you understand that?
MR. ORTUNO-HIGAREDA: Yes.
Thus, Ortuño was orally advised that he was subject to Special Condition One, which provided that he “shall not re-enter the United States without legal authorization.” However, the Revocation Petition did not charge him with a violation of that condition. Instead, it charged him with violating Standard Condition One, which provided that Ortuño “shall not commit another federal, state, or local crime during the term of supervision.” Ortuño was not informed at the hearing that he was subject to this latter condition. Because the government did not prove that Ortuño received any notice, written or oral, that he would be subject to Standard Condition One, a violation of that condition could not serve as the basis for revocation of his supervised release.
It is insufficient that Ortuño was verbally advised that he would violate a condition of his supervised release if he illegally re-entered the United States. As we stated in Ortega-Brito, the lack of written notice may be excused if a defendant received actual notice of a condition and “the revocation of his release [is] based upon a violation of such condition [].” Id. (emphasis added); see also id. (stating that “we must determine whether [the defendant] received actual notice of the conditions, the violations of which formed the basis for the revocation of his supervised release” (emphasis added)). In disregarding noncompliance with the statutory mandate, we did not go so far as to hold that actual notice of one condition may support revocation based on violation of a different condition. We now hold that the failure to provide the statutorily required written
The dissent states that “[a]lthough Ortega-Brito, like Ortuño, was not expressly advised that his supervised release was conditioned on his refraining from committing crimes, we nevertheless ruled that Ortega-Brito ‘received actual notice’ that ‘he may not ... commit any crimes.‘” Post at 11643, quoting Ortega-Brito, 311 F.3d at 1139. But, as the dissent acknowledges, the defendant in Ortega-Brito had been advised that supervised release is “like a parole. If you do something wrong, you go back to jail.” 311 F.3d at 1138. A fair reading of our opinion in Ortega-Brito makes clear that we relied upon this specific advisement in concluding that the defendant “received actual notice” that “he may not ... commit any crimes.” Id. at 1139. There was no similar advisement in this case. Thus, we do not agree that “[t]here is no principled basis upon which Ortega-Brito can be distinguished.” Post at 11643.
One further issue merits discussion. The finding of the magistrate judge and district court that Ortuño received the required actual notice could only have been based on Castillo‘s testimony, because the transcript of the sentencing hearing at which supervised release was imposed was not before the magistrate judge when he issued the R & R or the district court when it adopted the R & R. Yet, all Castillo testified was that a sentencing judge “usually advises” the defendant of the conditions of supervised release at the time of sentencing.
We are aware of no case holding that evidence that it is the “practice” of sentencing judges to advise defendants that they are subject to certain conditions is sufficient to establish that a particular defendant was in fact so advised. The statutes discussed earlier are clear and free of doubt as to their meaning. It is true that in Ortega-Brito we created our own exception to the statutes which has not been overruled by the Supreme Court and has not been made irrelevant by a congressional amendment. But this does not justify additional judicial tinkering with the statutes. We therefore hold that the evidence in this case regarding the “practice” of sentencing judges does not establish that Ortuño received notice of any conditions. We stress that the failure to adhere to the congressional mandate to provide written notice should be excused only when there is specific evidence that the defendant received actual notice of the condition, “the violation[] of which formed the basis for the revocation of his supervised release.” Ortega-Brito, 311 F.3d at 1138.
In Ortega-Brito, we were “compelled to emphasize the importance of compliance with
The district court‘s judgment revoking Ortuño‘s term of supervised release and sentencing him to a twenty-four-month term of imprisonment is VACATED.
RAWLINSON, Circuit Judge, concurring in part and dissenting in part:
I concur in that portion of the opinion concluding that the district court had jurisdiction to revoke the supervised release term. I respectfully dissent, however, from that portion of the opinion concluding that Ortuño-Higareda was not adequately apprised of the standard condition that he “not commit another federal, state or local crime.” As the majority opinion acknowledges, we have ruled that notice of a supervised release condition is adequate if the defendant received actual notice of that condition. See United States v. Ortega-Brito, 311 F.3d 1136, 1138 (9th Cir.2002).
As the majority opinion noted, at the time of sentencing the district court advised the defendant of the imposition of
... supervised release with the standard conditions plus the special condition that the defendant is not to enter the United States without proper documentation.
. . . .
... if you reenter the United States, you‘re going to be—within three years ... you will be violating your conditions of probation, you will be brought before the Court for violation of supervised release, and you could do another three yeas for entering illegally.
The majority opinion proposes to vacate the revocation because Ortuño was advised of Special Condition One, that he not “reenter the United States without legal authorization,” but was not advised of Standard Condition One, that he “not commit another federal, state or local crime.” The majority opinion reasons that because the revocation petition charged a violation of Standard Condition One and not Special Condition One, a violation of Standard Condition One “could not serve as the basis for revocation of his supervised release.” However, I am not convinced that invalidation of the revocation is consistent with Ortega-Brito.
The supervised release advisement in Ortega-Brito was not markedly different from the advisement in this case. In Ortega-Brito, the releasee was advised that supervised release was “like a parole. If you do something wrong, you go back to jail.” Ortega-Brito, 311 F.3d at 1138. The district court judge informed the releasee of the conditions of supervised release by stating:
The usual terms and conditions will apply, together with the special terms and conditions: that under no circumstances is he ever again, as long as he lives, to reenter or attempt to reenter the United States without being properly and legally documented to do so and having legal permission from the United States government to do so.
Id. at 1139 (alteration omitted).
We interpreted the advisement given by the district court as giving Ortega-Brito actual notice that his release was conditioned upon compliance with at least two restrictions: he may not (1) commit any crimes, and (2) reenter the United States without proper documentation. Id. (emphasis added).
The majority opinion concludes that “[i]t is insufficient that Ortuño was verbally