UNITED STATES COURT OF APPEALS
Filed 1/24/97
TENTH CIRCUIT
UNITED STATES OF AMERICA, )
)
Plaintiff-Appellee, )
)
vs. ) No. 96-2204
) (D.C. No. CR-96-91-HB)
MARCO ANTONIO RODRIGUEZ-MERAZ, ) (D.N.M.)
)
Defendant-Appellant. )
ORDER AND JUDGMENT*
Before TACHA, BALDOCK, and LUCERO, Circuit Judges.**
Defendant Marco Antonio Rodriguez-Meraz, a citizen of Mexico, pled guilty to
one count of reentry of a deported alien subsequent to a felony conviction in violation of
8 U.S.C. § 1326 (a)(1), (2), & (b)(1). Pursuant to his plea agreement, Defendant
stipulated to his deportability and waived a formal deportation hearing. An immigration
*
This order and judgment is not binding precedent, except under the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 or 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 honor the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1.9. This appeal therefore is
ordered submitted without oral argument.
judge subsequently ordered Defendant deported. Thereafter, the district court sentenced
Defendant to two years imprisonment and one year supervised release. The court
imposed the standard conditions of supervised release, see 18 U.S.C. § 3563, including
the conditions that Defendant (1) not leave the judicial district without permission of the
court or probation office, and (2) report to the probation office within the first five days
of each month. Defendant asked the district court to strike the two foregoing conditions
of his supervised release because he had been ordered deported to Mexico. The district
court refused to alter the terms of Defendant’s supervised release, but indicated that the
two conditions would not apply if Defendant were deported, and thereafter remained
outside the United States:
THE COURT: Upon release from confinement, he’s on supervised
release for a term of one year. Within 72 hours of release from custody,
report to the nearest probation office. If he’s deported and then returns,
he’s to report to the nearest probation office to complete the remaining
portion of his supervised release. . . .
[DEFENDANT’S COUNSEL]: One final thing, without waiving the
supervised release departure issue, when I’m looking at the recommended
conditions of supervised release, one is that the defendant shall not leave
the judicial district or other area without permission of the court or
probation officer. Can I request that that be stricken?
THE COURT: Sure. Well, if he’s deported, why that’s legal.
[DEFENDANT’S COUNSEL]: Yes sir. And, secondly, it also says
he has to give a written report within five days of each month under a
standard condition. It just seems redundant to me that we impose it, and
there’s no way to carry it out.
THE COURT: Once he’s deported, that’s waived, of course.
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Rec. Vol. III at 8-10.
On appeal, Defendant asserts that the district court abused its discretion by
requiring Defendant to remain within the district and periodically report to the probation
office as conditions of his supervised release. Because he was ordered deported,
Defendant claims he cannot comply with the conditions of his supervised release once he
returns to Mexico. Our jurisdiction arises under 28 U.S.C. § 1291 and 18 U.S.C. § 3742.
We affirm.
While we review the district court’s application of the sentencing guidelines de
novo, we review court-ordered conditions of supervised release for an abuse of discretion.
United States v. Edgin, 92 F.3d 1044, 1047 (10th Cir. 1996), cert. denied, S. Ct.
(1997). “The district court has broad discretion over conditions for post-incarceration
supervised release, as explicitly granted by the sentencing guidelines and the statutes
upon which those guideline sections are based.” United States v. Pugliese, 960 F.2d 913,
915 (10th Cir. 1992) (citing 18 U.S.C. § 3583(d) and U.S.S.G. § 5D1.3(b)).
Under Application Note 1 of U.S.S.G. § 5D1.1, the district court has discretion to
depart from the requirement that a term of supervised release be imposed following
imprisonment. In this case, however, the court declined to depart so that Defendant
would be required by law to notify the probation office if he returned to the United States
during his period of supervised release. While recognizing that Defendant’s term of
supervised release would remain in effect despite his deportation, see United States v.
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Brown, 54 F.3d 234, 237-39 (5th Cir. 1995), the court also recognized the difficulty of
imposing an effective program of supervised release upon Defendant after deportation.
See id. at 238 n.3. The district court’s comments at sentencing indicate that the court
intended the challenged terms of supervised release to apply only while Defendant is
present within the United States. If Defendant is deported and returns before his one year
term of supervised release ends, he once again becomes subject to all the conditions of his
supervised release. See id. at 239 (offender reentering the United States before expiration
of supervision should be supervised) (citing X Probation Manual Guide to Judiciary
Policies and Procedures IV, § 18). Absent any indication of Congressional intent that the
sentencing decision of the district court was improper, we believe the court did not abuse
its discretion in imposing the foregoing terms and conditions of supervised release upon
Defendant.
AFFIRMED.
Entered for the Court,
Bobby R. Baldock
Circuit Judge
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