UNITED STATES COURT OF APPEALS
Filed 5/29/96
FOR THE TENTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 95-2101
(D.C. No. 94-CR-606-HB)
LUCIANO ACUNA-DIAZ, also known (D. N.M.)
as Felipe Casas-Sanchez,
Defendant-Appellant.
UNITED STATES OF AMERICA,
Plaintiff-Appellee, No. 95-2134
(D.C. No. CR 91-426 SC)
v. (D. N.M.)
LUCIANO ACUNA-DIAZ,
Defendant-Appellant.
ORDER AND JUDGMENT*
Before ANDERSON, LOGAN, and MURPHY, Circuit Judges.
*
This order and judgment is not binding precedent, except under the doctrines of law
of the case, res judicata, and collateral estoppel. The court generally disfavors the citation
of orders and judgments; nevertheless, an order and judgment may be cited under the terms
and conditions of 10th Cir. R. 36.3.
After examining the briefs and appellate record, this panel has determined
unanimously to grant the parties’ request for a decision on the briefs without oral argument.
See Fed. R. App. P. 34(f) and 10th Cir. R. 34.1.9. The cases are therefore ordered submitted
without oral argument.
Defendant Luciano Acuna-Diaz appeals from two orders of the district court, one
sentencing him for unlawful reentry into the United States after deportation, No. 95-2101,
and the other revoking supervised release imposed in an earlier conviction, No. 95-2134. We
have consolidated the two appeals and we now affirm.
In 1991, Mr. Acuna-Diaz was charged with illegal reentry into the United States after
deportation. He pled guilty and was sentenced to twelve months’ incarceration followed by
three years’ supervised release. He was deported to Mexico after serving the twelve-month
sentence. In 1994, while still on supervised release, he was arrested again for illegal reentry
after deportation. He pled guilty and was sentenced to forty-six months’ incarceration.
Subsequently, supervised release was revoked and Mr. Acuna-Diaz was sentenced to ten
months’ incarceration to be served consecutively to the forty-six month sentence.
No. 95-2101
In this appeal, Mr. Acuna-Diaz challenges the length of the sentence imposed in his
1994 conviction. He argues the forty-six month sentence violates the Eighth Amendment as
grossly disproportionate to the crime and excessively punitive.
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We review Mr. Acuna-Diaz’ constitutional challenges de novo. United States v.
Angulo-Lopez, 7 F.3d 1506, 1508 (10th Cir. 1993), cert. denied, 114 S. Ct. 1563 (1994),
superseded on other grounds by regulation, United States v. Kissick, 69 F.3d 1048 (10th Cir.
1995).
The Supreme Court has held that “the Eighth Amendment contains no proportionality
guarantee.” Harmelin v. Michigan, 501 U.S. 957, 965 (1991). Further, any sentence which
falls within the prescribed statutory limits will not be found to be cruel and unusual
punishment. United States v. Youngpeter, 986 F.2d 349, 355 (10th Cir. 1993). The statute
under which Mr. Acuna-Diaz was convicted provides for a sentence of not more than ten
years. 8 U.S.C. § 1326(b)(1). Mr. Acuna-Diaz’s sentence is within the statutory limits and
is not cruel and unusual.
No. 95-2134
In No. 95-2134, Mr. Acuna-Diaz appeals the ten-month sentence imposed upon
revocation of his supervised release. He argues that ordering the sentence be served
consecutively violates due process by punishing him twice for the same conduct. He
contends the forty-six month sentence was enhanced by nine months because he reentered
illegally while on supervised release. He concludes that because there is a complete overlap
of crimes, the district court should have run the sentences concurrently.
Mr. Acuna-Diaz’s due process argument is unclear. He states his claim is “technically
a double jeopardy claim,” but asserts the “essence” of his claim is an appeal to the due
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process “concepts of fundamental fairness.” Appellant’s Br. at 9. We have “noted that
where constitutional protection is afforded under specific constitutional provisions, alleged
violations . . . should be analyzed under those provisions and not under the more generalized
provisions of substantive due process.” Riddle v. Mondragon, No. 93-2225, 1996 WL
206944, at *2 (10th Cir. Apr. 29, 1996). Therefore, we address this claim as one alleging
violations of the Fifth Amendment prohibition against double jeopardy. We review this
argument de novo. United States v. Raymer, 941 F.2d 1031, 1037 (10th Cir. 1991).
The Ninth Circuit addressed this issue in United States v. Soto-Olivas, 44 F.3d 788
(9th Cir.), cert. denied, 115 S. Ct. 2289 (1995). The defendant reentered the United States
illegally in violation of the terms of his supervised release. Supervised release was revoked
and he was sentenced to seven months’ imprisonment. The defendant was then convicted
of illegal reentry into the United States. The court rejected the defendant’s double jeopardy
argument and held that “supervised release, although imposed in addition to the period of
incarceration, is ‘a part of the sentence,’” imposed in the original crime. Id. at 790 (quoting
18 U.S.C. § 3583(a)). Because supervised release is a part of 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,” id. (quotation omitted), no double
jeopardy violation occurred when the defendant was later convicted of the crime of illegal
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reentry. The court stated that it is “clear that punishment imposed upon revocation of
supervised release is punishment for the original crime, not punishment for the conduct
leading to revocation.” Id. at 791 (citing United States v. Clark, 984 F.2d 319 (9th Cir.
1993)).
We adopt the reasoning of the Ninth Circuit. When Mr. Acuna-Diaz violated the
terms of his supervised release, he subjected himself to deferred punishment for his 1991
crime of illegal entry into the United States. In considering the sentence to be imposed for
that violation, the district court was not punishing Mr. Acuna-Diaz for his 1994 illegal entry.
See United States v. Robinson, 62 F.3d 1282, 1286 (10th Cir. 1995)(noting that period of
supervised release is “‘part of the sentence’” (quoting 18 U.S.C. § 3583(a))); see also United
States v. Koonce, 885 F.2d 720, 721-22 (10th Cir. 1989)(holding that a sentence
enhancement based on criminal activity which is later prosecuted separately does not violate
the double jeopardy clause), cert. denied, 503 U.S. 994 and 503 U.S. 998 (1992). The
Double Jeopardy Clause was not violated when the district court imposed a separate ten
month sentence for Mr. Acuna-Diaz’s violation of the terms of his supervised release.
Having determined that the imposition of separate sentences does not violate the
Double Jeopardy Clause in these circumstances, we review the district court’s decision to
impose the sentences consecutively for an abuse of discretion. United States v. Gonzales,
65 F.3d 814, 819 (10th Cir. 1995), petition for cert. filed, 64 U.S.L.W. 3692 (U.S. Apr. 4,
1996)(No. 95-1605); United States v. Kalady, 941 F.2d 1090, 1097-98 (10th Cir. 1991).
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The Introductory Commentary to Part B of Chapter 7 of the Sentencing Guidelines
states that
[w]here a defendant is convicted of a criminal charge that also is a basis for the
violation, these policy statements do not purport to provide the appropriate
sanction for the criminal charge itself. The Commission has concluded that the
determination of the appropriate sentence on any new criminal conviction
should be a separate determination for the court having jurisdiction over such
conviction.
See also id. § 7B1.3(f)(any term of imprisonment imposed when supervised release is
revoked shall be served consecutively to any sentence the defendant is currently serving,
whether or not the current sentence resulted from conduct which is the basis of the revocation
of supervised release); id. Ch. 7, Pt. B Introductory Commentary (Sentencing Commission
policy is “that the sanction imposed upon revocation is to be served consecutively to any
other term of imprisonment imposed for any criminal conduct that is the basis of the
revocation”). The district court did not abuse its discretion.
The judgments of the United States District Court for the District of New Mexico are
AFFIRMED.
Entered for the Court
Stephen H. Anderson
Circuit Judge
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