F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
FEB 11 1998
TENTH CIRCUIT
PATRICK FISHER
Clerk
UNITED STATES OF AMERICA,
Plaintiff- Appellee,
No. 96-2166
(D.C. No. CV 96-64 SC/JHG,
v.
CR 90-122 JB)
(Dist. New Mexico)
ARMANDO FERNANDEZ,
Defendant-Appellant.
ORDER AND JUDGMENT *
Before BRORBY, EBEL and KELLY, Circuit Judges.
On September 25, 1990, the United States District Court for the District of
New Mexico sentenced defendant-appellant Armando Fernandez to 41 months of
incarceration to be followed by four years of supervised release after Fernandez
pled guilty to conspiracy to posses with intent to distribute more than 100
kilograms of marijuana and possession with intent to distribute more than 100
*
After examining appellant’s brief and the appellate record, this panel has
determined unanimously that oral argument would not materially assist the determination
of this appeal. See Fed. R. App. P. 34(f) and 10th Cir. R. 34.1.9. The case is therefore
ordered submitted without oral argument. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral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.
kilograms of marijuana. Fernandez served his sentence and began his period of
supervised release. On October 31, 1992, while on supervised release, the United
States Custom Service arrested Fernandez in El Paso, Texas, for conspiracy to
possess with intent to distribute approximately 291 pounds of marijuana and
possession with intent to distribute over 100 kilograms of marijuana. On October
18, 1993, Fernandez pled guilty to conspiracy to possess with intent to distribute
more than 50 kilograms of marijuana. He was sentenced to 70 months
imprisonment to be followed by a term of supervised release of three years and
was committed to the Federal Bureau of Prisons on June 2, 1994, to serve his
sentence.
Based on Fernandez's 1993 conviction in Texas, Norma Svet, United States
Probation Officer, filed a petition on November 3, 1994, to revoke Fernandez's
supervised release under the terms of his sentence for the 1990 conviction in New
Mexico. On November 16, 1994, the United States District Court for the District
of New Mexico issued a Warrant for Arrest which was lodged as a detainer
against Fernandez on December 5, 1994. On January 16, 1996, Fernandez filed a
Motion to Discharge Term of Supervised Release pursuant to 18 U.S.C.
§§ 3583(e)(1) & (2) in the United States District Court for the District of New
Mexico. Fernandez argued that the supervised release portion of his sentence for
the New Mexico conviction should be dismissed because the government had
-2-
failed to schedule a revocation hearing within a reasonable time of the detainer
being placed against him. The district court denied the motion on July 1, 1996.
Fernandez subsequently filed a motion to reconsider which also was denied on
April 2, 19997. Fernandez now appeals. 1
First, Fernandez claims that the government denied him a revocation
hearing within a reasonable time as required by Federal Rule of Criminal
Procedure 32.1(a)(2). Rule 32.1(a)(2) requires that a hearing to revoke probation
or a term of supervised release "shall be held within a reasonable time in the
district of jurisdiction." However, in McDonald v. New Mexico Parole Board,
955 F.2d 631, 633 (10th Cir. 1991), we held that the "hearing requirements and
time limitations" applicable to a final revocation hearing "must be adhered to only
after the parolee is taken into custody as a parole violator." Id. at 633; see also
United States v. Chaklader, 987 F.2d 75, 77 (1st Cir. 1993). Consequently, Rule
32.1(a)(2) is triggered only when the government takes a defendant into custody
for violating the conditions of his parole or supervised release, not by the mere
issuance of a detainer or warrant for arrest. The district court found that
Fernandez was not being held on the outstanding warrant for violation of his
1
The district court denied a certificate of appealability, apparently treating
Fernandez's motion as a motion to vacate, set aside, or correct sentence under 28 U.S.C.
§ 2255. However, as discussed in our December 15, 1997, Order, the certificate of
appealability requirements in the Antiterrorism and Effective Death Penalty Act do not
apply to this appeal.
-3-
supervised release because the warrant had not been executed. Instead, Fernandez
is currently held in custody for the sentence he received for his 1993 conviction in
Texas. As a result, no triggering event has occurred requiring the holding of a
revocation hearing within a reasonable time under Rule 32.1(a)(2).
Second, Fernandez argues that the detainer lodged against him has deprived
him of the ability to take advantage of various educational and rehabilitative
programs offered by the Bureau of Prisons in violation of his constitutional right
to due process. However, we noted in McDonald that "the Supreme Court has
rejected the concept that these kinds of adverse consequences . . . trigger a due
process concern." Id. at 634 (citing Moody v. Daggett, 429 U.S. 78, 88 n.9
(1976)). Therefore, Fernandez's due process claim also must fail.
For these reasons, we AFFIRM the district court's order denying
Fernandez's Motion to Discharge Term of Supervised Release.
The mandate shall issue forthwith.
ENTERED FOR THE COURT
David M. Ebel
Circuit Judge
-4-