UNITED STATES of America, Plaintiff-Appellee, v. Raul ORTUÑO-HIGAREDA, Defendant-Appellant.
No. 04-10257.
United States Court of Appeals, Ninth Circuit.
Argued and Submitted Feb. 7, 2005. Filed June 8, 2006.
Here, the central question concerns whether EPA has a substantive responsibility and authority, created by the Endangered Species Act itself, to refrain from taking action that threatens listed species. If it does, then there is nothing futile about considering whether endangered species will be affected, for that is the inquiry the statute dictates.
The difference between NEPA, a strictly procedural statute, and the Endangered Species Act, a partially substantive statute, is critical. Public Citizen determined because there was no statutory authority for the Department of Transportation to ban the Mexican trucks for environmental reasons, there were therefore no procedures mandated by NEPA to inform the phantom decision. Only the most myopic observer could fail to see the difference between a statute that simply provides a procedure to inform decisionmaking processes governed entirely by other statutes from one that sets a substantive decisionmaking requirement.
The central dispute in this case concerns the reach of the substantive mandate of section 7 of the Endangered Species Act. The question in this case is one specific to the Endangered Species Act and depends only on the particular language, history, and administrative application of that statute. As to that question, Public Citizen, a case that has nothing to do with the Endangered Species Act here at issue and that construed a statute with no substantive import, emphatically does not “appl[y] equally to this case.” Kozinski Dissent at 399. Instead, Public Citizen is entirely uninformative on the key legal point in this case.
Christina M. Cabanillas, Appellate Chief (on rehearing), and Nathan D. Leonardo, Assistant United States Attorney, Tucson, AZ, for plaintiff-appellee United States of America.
Before J. CLIFFORD WALLACE, JOHNNIE B. RAWLINSON, and JAY S. BYBEE, Circuit Judges.
ORDER AND OPINION
RAWLINSON, Circuit Judge.
ORDER
The petition for panel rehearing is GRANTED. The opinion and concurrence/dissent filed on August 26, 2005, are withdrawn. The superseding opinion and dissent will be filed concurrently with this order. Further petitions for rehearing or for rehearing en banc may be filed.
Opinion
Raul Ortuño-Higareda (“Ortuño“) challenges the revocation of his supervised release. Because we hold that the district court had jurisdiction to revoke Ortuño‘s supervised release, that there was sufficient evidence to prove that Ortuño violat
I
BACKGROUND
Ortuño was convicted in the United States District Court for the District of Arizona of illegal re-entry after deportation, in violation of
At Ortuño‘s sentencing hearing on August 4, 2000, the court specifically informed Ortuño that if he reentered the United States within three years after serving his sentence, he would be in violation of the conditions of his release. The court further noted that such a violation could result in Ortuño‘s imprisonment for another three years. When asked if he understood, Ortuño answered, “[y]es.”
Ortuño was released from federal custody on August 13, 2001. He was deported that same day. In such a case, the inmate is released directly into the custody of the Department of Immigration and Naturalization Services (INS).1 No probation officer meets with the inmate following release.
On May 1, 2003, Ortuño was apprehended by the Border Patrol at or near Jote Mesa, California and arrested for reentering the country without authorization. A criminal complaint was filed against Ortuño in the United States District Court for the Southern District of California. Subsequently, a Petition to Revoke Supervised Release and a Warrant for Arrest were filed in the District of Arizona. The Petition to Revoke Supervised Release charged that Ortuño violated the release conditions imposed when he was sentenced.
An evidentiary hearing on the petition to revoke supervised release was held before a magistrate judge. At the hearing, the government presented the testimony of Border Patrol Agent George Allen. During his testimony, Agent Allen was in possession of Ortuño‘s original A-file.2 Contained in that A-file and admitted into evidence was the arrest report, or Record of Deportable/Inadmissible Alien, for Ortuño, dated May 1, 2003. According to Agent Allen‘s testimony, the report indicated that Ortuño‘s entry status was without authorization and that his last known entry into the United States occurred on May 1, 2003, at or near Jote Mesa, California. The report also contained a statement describing Ortuño‘s apprehension by the Border Patrol.
Another document in the A-file was the criminal complaint filed in the United States District Court for the Southern District of California. Agent Allen testified that the complaint contained a similar description of Ortuño‘s apprehension. Finally, the A-file contained the results of a fingerprint examination. The results reflected a match between the fingerprints
On cross-examination, counsel for Ortuño asked Agent Allen whether there was any record of a conviction for the May 1, 2003 illegal re-entry charge. Agent Allen testified that he confirmed telephonically that afternoon that there was a conviction, but that the judgment was not yet in the A-file. Agent Allen clarified that a copy of the judgment would ordinarily not be placed in the A-file until Ortuño was deported. On re-direct examination, Agent Allen explained that earlier that afternoon, he confirmed with the San Diego Border Patrol Prosecution Unit that judgment of conviction was entered on August 29, 2003.
Ortuño moved to dismiss the Petition to Revoke on the bases that: 1) the government failed to present sufficient evidence that Ortuño violated the conditions of his supervised release absent proof of a conviction; and 2) Ortuño was never provided a written copy of the supervised release conditions. The magistrate judge issued a Report and Recommendation (R & R) finding that Ortuño violated the conditions of his supervised release and was given actual notice of the condition that he not re-enter the country illegally. The district court adopted the R & R, revoked Ortuño‘s supervised release, and sentenced him to a twenty-four month term of imprisonment.
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 Fourth Amendment‘s Warrant Clause.
II
STANDARDS OF REVIEW
“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) (citation omitted). Whether a defendant received due process at a proceeding to revoke supervised release is reviewed de novo. United States v. Havier, 155 F.3d 1090, 1092 (9th Cir. 1998). “We review the district court‘s exercise of jurisdiction de novo.” United States v. Powell, 24 F.3d 28, 30 (9th Cir. 1994) (citation omitted).
III
DISCUSSION
A. The district court had jurisdiction to revoke Ortuño‘s supervised release.
We address Ortuño‘s jurisdictional argument first. See Kyocera Corp. v. Prudential-Bache Trade Servs., Inc., 341 F.3d 987, 995 n. 12 (9th Cir. 2003) (en banc) (stating that “we are required to resolve [jurisdictional] questions first“), cert. dismissed, 540 U.S. 1098, 124 S.Ct. 980, 157 L.Ed.2d 810 (2004).
It is undisputed that the warrant which precipitated Ortuño‘s arrest was not “supported by Oath or affirmation.” The question is whether this deficiency divested the district court of jurisdiction to revoke his supervised release. Although Ortuño did not raise this issue in the district
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. However, 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 supervised release term. Therefore, that Ortuño was arrested pursuant to a warrant which was not supported by oath or affirmation did not deprive the district
With the jurisdiction issue settled, we address the merits of Ortuño‘s challenges to the revocation of his supervised release.
B. Ortuño had imputed knowledge of the standard release condition that he not commit a crime.
Ortuño asserts that because he was never provided with a written statement of the conditions of his supervised release as required by
Courts have sustained the revocation of probation ... where the defendant was not aware of the conditions. In such a case, knowledge of the criminal law is imputed to the probationer, as is an understanding that violation of the law will lead to the revocation of probation.
Id. at 843-44 (citation omitted) (emphasis added); see also United States v. Simmons, 812 F.2d 561, 565 (9th Cir. 1987) (explaining that “[a] court ... may impute knowledge [of a probation condition] when the violation is a criminal act“) (citation omitted); United States v. Laughlin, 933 F.2d 786, 790 (9th Cir. 1991) (noting that “a court may impute notice and knowledge of conditions when their violation entails a criminal act. [The defendant] is thus presumed to have notice at least that his [criminal] activities violated probation.“) (citation omitted).4
Ordinarily, we would not consider contentions that went unmentioned during a full round of briefing and oral argument. See Varney v. Sec. of Health and Human Servs., 859 F.2d 1396, 1397 (9th Cir. 1988). However, we are now cognizant that our withdrawn panel opinion was in direct conflict with prior precedent. Compare Ortuño-Higareda, 421 F.3d at 923-24 (requiring actual notice of the standard condition that the releasee refrain from committing a crime), with Simmons, 812 F.2d at 565 (“[W]hen ... the proscribed acts are not criminal, due process requires that the probationer receive actual notice.“) (emphasis added). To avoid an intracircuit conflict, and after considering the post-argument filings of the parties, we elect to consider the government‘s argument in this unique circumstance. See Escobar-Ruiz v. INS, 813 F.2d 283, 286 (9th Cir. 1987) (allowing the government to make a new argument when to do otherwise would “allow[] an improper [statutory] interpretation ... to stand as the controlling precedent [and][] constitute a disservice to all parties concerned.).”
Standard Condition 1 provided:
You shall not commit another federal, state or local crime during the term of supervision.
Standard Condition 1 falls squarely within our precedent that imputes “an understanding that violation of the law will lead to the revocation of probation.” Dane, 570 F.2d at 844. Our precedent forecloses any argument that Ortuño could not be held accountable for committing the crime of illegal re-entry and/or being found in the United States after deported, regardless of whether he received actual notice of those proscriptions. Accordingly, revocation of Ortuño‘s supervised release for violating Standard Condition 1 was proper.
C. There is sufficient evidence in the record to support the district court‘s conclusion that Ortuño violated the conditions of his supervised release.
Ortuño contends that there was insufficient evidence presented to establish that he was convicted of a federal crime because the only evidence of his conviction was the hearsay testimony of Agent Allen. Ortuño postulates that absent proof of a conviction, insufficient evidence exists to support revocation of his supervised release. Ortuño also argues that the district court‘s reliance on the hearsay testimony of Agent Allen violated his due process rights.
A court may revoke a term of supervised release “if the court ... finds by a preponderance of the evidence that the defendant violated a condition of supervised release ...”
The R & R, which the district court adopted, seemed to rely, at least in part, on Agent Allen‘s hearsay testimony that he telephonically confirmed Ortuño‘s conviction. However, the R & R was also grounded on the documents contained in Ortuño‘s A-file.5 Thus, although the R & R stated that “the certified copy of the judgment is the preferable evidence,” it nonetheless found that “the Government met its burden, by a preponderance of the evidence, that Ortuño committed a federal criminal offense while on supervised release.” Id. (emphasis added).
Of course, a certified conviction would be the best evidence that Ortuño committed the crime of re-entry without authorization.6 However, other documents in Ortuño‘s A-file, presented through the testimony of Agent Allen, established by a preponderance of the evidence that Ortuño illegally re-entered the United States after being deported and thus committed a federal crime. See
IV
CONCLUSION
The district court had jurisdiction to conduct the proceedings in this case. Notice was imputed to Ortuño that if he re-entered or was found in the United States after deportation, he would be in violation of his supervised release condition that he refrain from committing further crimes. There was sufficient evidence in the record to support the district court‘s finding that Ortuño violated the conditions of his supervised release.
AFFIRMED.
WALLACE, Circuit Judge, dissenting:
The government was obviously upset by our earlier opinion in this case, United States v. Ortuño-Higareda, 421 F.3d 917 (9th Cir. 2005), and immediately began casting its net for a different and more plausible argument. The government‘s brand new argument, advanced for the first time in its petition for rehearing, has now been accepted by a majority of this panel. I must respectfully dissent. I would not entertain the government‘s argument, as it is both waived and without merit.
As the majority properly states, we normally do not consider contentions that went unmentioned during the full round of briefing and oral argument, and these arguments are deemed waived. See, e.g., Squaw Valley Development Co. v. Goldberg, 395 F.3d 1062, 1063 (9th Cir. 2005) (rejecting argument “because it is made for the first time in the petition for rehearing“); Picazo v. Alameida, 366 F.3d 971, 971-72 (9th Cir. 2004) (refusing to consider argument on petition for rehearing where issue had been raised “at no point in th[e] litigation“); Talk of the Town v. Dep‘t of Finance and Business Servs., 353 F.3d 650, 650 (9th Cir. 2003) (refusing to consider argument raised on petition for rehearing “for the first time ever“).
In Varney v. Secretary of Health & Human Servs., 859 F.2d 1396, 1397 (9th Cir. 1988), we discussed a narrow exception to the general rule of waiver for cases involving “extraordinary circumstances,” where the issue involved is “sufficiently urgent.” Id. at 1398. The majority contends that we should jettison the important tenet of waiver because “our withdrawn panel opinion was in direct conflict with prior precedent.” The majority relies primarily on three cases: United States v. Laughlin, 933 F.2d 786 (9th Cir. 1991); United States v. Simmons, 812 F.2d 561 (9th Cir. 1987); and United States v. Dane, 570 F.2d 840 (9th Cir. 1977).
These three cases, however, do not conflict with our original opinion. None of the cases arose under the statutory regime that is now in place, and even if they had, none of them rule on the issue that we decided in our withdrawn Ortuño-Higareda opinion. In Dane, the then-statute was in fact satisfied. The probation officer had provided a written form describing the conditions of probation, which Dane had signed. In addition, the probation officer explained the significance of the form to
Similarly, in Simmons, there is no indication that the statutory issue was raised. Thus, there can be no conflict with our withdrawn opinion.
Finally, our decision in Laughlin explicitly leaves open the very question that was decided in our withdrawn opinion. Laughlin “object[ed] that his probation officer failed to perform her or his duty under
Thus, contrary to the majority‘s contention that our withdrawn opinion was in “direct conflict with our prior precedent,” the opposite is true. The issue was never raised except in Laughlin, where it was specifically left open, and was not addressed again as being dispositive to the outcome of an appeal until our withdrawn opinion.
This brings me to our more recent case of United States v. Ortega-Brito, 311 F.3d 1136 (9th Cir. 2002). There, we specifically criticized the failure to comply with
How does Ortega-Brito differ from the case before us? As is clear from our withdrawn opinion, the specific term of supervised release that Ortuño-Higareda was accused of violating was not provided to him, orally or in writing, at any time or by anyone. This case is factually distinct from Ortega-Brito and all of our prior cases, and presents this specific statutory claim for the first time. We answered the question in our withdrawn opinion.
It seems to me that not only was the government demonstrably tardy, but it was also wrong. While the majority has accepted its obviously flawed argument and rejected our ordinary waiver doctrines, I cannot. The government‘s effort to demonstrate a conflict that does not exist and its renewed effort to win a point that it properly lost before will apparently carry the day. The government, apparently, will be allowed to continue its unfortunate practice of disregarding statutory mandates and putting its prosecution practices above the will of Congress.
For the reasons stated by the withdrawn majority opinion, I cannot join the present majority. The obligations imposed by the United States Congress in
Acceptance of my position, of course, does not leave the government without the ability to enforce the law. The government contends that Ortuño-Higareda has violated the law. It need not attempt to squeeze this alleged crime into a violation of supervised release. The government is free to indict Ortuño-Higareda on the new crime and to present evidence of the violation. Because of its own failure to follow the statutory mandate, the government‘s decision to shoehorn this alleged crime into a supervised release violation is unfortunate. That the majority allows the government to do so is even more regrettable.
For the reasons stated above, I would not withdraw our prior opinion. For the reasons stated in the prior majority opinion, see Ortuño-Higareda, 421 F.3d at 922-25, I dissent from the majority disposition.