F I L E D
United States Court of Appeals
Tenth Circuit
PU BL ISH
August 22, 2006
UNITED STATES CO URT O F APPEALS Elisabeth A. Shumaker
Clerk of Court
TENTH CIRCUIT
U N ITED STA TES O F A M ER ICA,
Plaintiff - Appellee,
v. Nos. 05-6093, 05-6094
ARM ANDO CORDOVA, II,
Defendant - Appellant.
A PPE AL FR OM T HE UNITED STATES DISTRICT COURT
FO R TH E W ESTERN DISTRICT O F O K LAH O M A
(D. Ct. Nos. 01-CR-46-M and 02-CR-222-M )
W illiam P. Earley, Assistant Federal Public Defender (Paul Antonio Lacy,
Assistant Federal Public D efender, on the briefs), O ffice of the Federal Public
Defender for the W estern District of Oklahoma, Oklahoma City, Oklahoma,
appearing for Appellant.
M ark A. Yancey, Assistant United States A ttorney (Robert G. M cCampbell,
United States Attorney, with him on the briefs), Office of the United States
Attorney for the W estern District of Oklahoma, Oklahoma City, Oklahoma,
appearing for Appellee.
Before TA CH A, Chief Circuit Judge, HENRY, and M cCO NNELL, Circuit
Judges.
TA CH A, Chief Circuit Judge.
On M arch 9, 2005, Defendant-Appellant Armando Cordova, II, stipulated to
allegations by his probation officer that he failed to comply with the terms of his
supervised release. Based on the stipulation, the D istrict Court revoked M r.
C ordova’s supervised release and sentenced him to 36 months’ incarceration. O n
appeal, M r. Cordova argues that the revocation of his supervised release violated
his Sixth Amendment rights to indictment by a grand jury, to a jury trial, and to
be found “guilty” of violating the terms of his supervised release beyond a
reasonable doubt. He also argues that the sentence imposed by the D istrict Court
is unreasonable. W e take jurisdiction under 28 U.S.C. § 1291 and AFFIRM .
I. BACKGROUND
In January 2000, M r. Cordova was convicted of conspiracy to possess with
intent to distribute 1,000 kilograms or more of marijuana and 5 kilograms or more
of cocaine in violation of 21 U .S.C. §§ 841(a)(1) and 846 (hereinafter “first
conviction”), and he w as sentenced to 24 months’ imprisonment and three years’
supervised release. In August 2001, while serving his sentence of imprisonment,
M r. Cordova was convicted of aiding and abetting the attempted introduction of
marijuana into a federal prison in violation of 18 U.S.C. §§ 1791(a)(1) and 2
(hereinafter “second conviction”), and he w as sentenced to six months’
imprisonment and three years’ supervised release for that offense.
After completing his prison sentences, M r. Cordova was released to
supervision. His transition proved unsatisfactory, however, as evidenced by
repeated violations of the terms of his supervised release. After providing M r.
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Cordova with several opportunities to reform his behavior, the District Court, on
M arch 25, 2003, revoked his supervised release and sentenced him to serve 12
months’ incarceration for each of his two prior convictions, to be served
consecutively. The District Court also imposed new terms of supervised
release— 3 years on the first conviction and 2 years on the second conviction, to
be served concurrently. Thereafter, M r. Cordova completed his term of
imprisonment, was again released to supervision, and again failed to adjust to that
supervision.
For a third time, M r. Cordova appeared at a hearing before the District
Court— this time, based on allegations that he violated the conditions of his
supervised release by testing positive for cocaine use, failing to report for further
drug testing, and failing to participate in a mandated therapy program at a
halfw ay house. M r. Cordova stipulated to the allegations, and the D istrict Court
revoked M r. Cordova’s supervised release. In doing so, the court did not make
any factual findings related to M r. Cordova’s conduct while on supervised
release, but instead relied solely upon M r. Cordova’s stipulations.
In setting the sentence for these most recent infractions, the court first
noted that each of the violations to which M r. Cordova stipulated were Grade C
violations. See U.S. Sentencing Guidelines M anual (“U.S.S.G.” or “Guidelines”)
§ 7B1.1. Given M r. Cordova’s criminal history category, the court then
determined the G uidelines range for violating supervised release as to the first
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conviction was 3 to 9 months’ imprisonment with a statutory maximum of 24
months, and that the Guidelines range for violating supervised release as to the
second conviction was 6 to 12 months’ imprisonment with a statutory maximum
of 12 months. See U.S.S.G. § 7B1.4; 18 U.S.C. § 3583(e)(3). 1 After
acknowledging these ranges, the District Court sentenced M r. Cordova to the
statutory maximums— 24 months as to the first conviction and 12 months as to the
second conviction. See 18 U.S.C. § 3583(e)(3). The sentences w ere ordered to
run consecutively. See 18 U.S.C. § 3584(a).
M r. Cordova appeals his sentence on two grounds. Relying on Apprendi v.
New Jersey, 530 U.S. 466 (2000) and United States v. Booker, 543 U.S. 220
(2005), he first argues that revocation of supervised release in its present form
violates the Sixth Amendment guarantees to indictment by a grand jury, to a jury
trial, and to be found “guilty” of violating the terms of his supervised release
beyond a reasonable doubt. 2 Second, M r. Cordova argues that his sentence was
neither reasoned nor reasonable.
1
M r. Cordova does not challenge the District Court’s determination of the
Guidelines ranges or the statutory maximums.
2
To the extent M r. Cordova also seeks to contest the original imposition of
supervised release, we reject that contention as well. Such a collateral attack
cannot be made in an appeal of the revocation of supervised release. United
States v. Hinson, 429 F.3d 114, 116 (5th Cir. 2005); United States v. White, 416
F.3d 1313, 1316 (11th Cir. 2005); see also Johnson v. United States, 529 U.S.
694, 700 (2000) (stating that supervised release is “part of the penalty for the
initial offense”).
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II. D ISC USSIO N
A. Sixth Amendment Challenge to Revocation of Supervised Release
M r. Cordova’s constitutional challenge is focused specifically on 18 U.S.C.
§ 3583(e)(3) and Fed. R. Crim. P. 32.1(b), which permit a judge to revoke a term
of supervised release and impose a prison term in its stead based upon findings
made by a preponderance of the evidence rather than beyond a reasonable doubt.
M r. Cordova maintains that this procedure is subject to the rule set forth in
Apprendi— namely, that “[o]ther than the fact of a prior conviction, any fact that
increases the penalty for a crime beyond the prescribed statutory maximum must
be submitted to a jury, and proved beyond a reasonable doubt.” 530 U.S. at 466.
In this way, he argues, 18 U.S.C. § 3583(e)(3) and Fed. R. Crim. P. 32.1(b)
subvert his Sixth Amendment rights to indictment by a grand jury, a jury trial,
and proof of his guilt beyond a reasonable doubt.
M r. Cordova concedes that he did not raise these issues before the District
Court. Accordingly, our review is for plain error. United States v. Burbage, 365
F.3d 1174, 1180 (10th Cir. 2004); Fed. R. Crim. P. 52(b). “Plain error occurs
when there is (1) error, (2) that is plain, which (3) affects substantial rights, and
which (4) seriously affects the fairness, integrity, or public reputation of judicial
proceedings.” Id. W e conclude that there is no error.
It is well-settled that supervised release is “part of the penalty for the initial
offense,” see Johnson, 529 U.S. at 700, and that “once the original sentence has
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been imposed in a criminal case, further proceedings with respect to that sentence
[have not been] subject to Sixth Amendment protections,” United States v. Work,
409 F.3d 484, 491 (1st Cir. 2005); see also Johnson v. United States, 529 U.S.
694, 698 (2000) (noting that violations of supervised release need only be found
by a judge by a preponderance of the evidence); M orrissey v. Brewer, 408 U.S.
471, 480 (1972) (holding that “revocation of parole is not part of a criminal
prosecution and thus the full panoply of rights due a defendant in such a
proceeding does not apply”); United States v. Carlton, 442 F.3d 802, 807 (2d Cir.
2006) (“[T]he ‘full panoply of rights’ due a defendant in a criminal prosecution
does not apply to revocation hearings for parole, for probation, or for supervised
release.” (citations omitted)). Nevertheless, M r. Cordova entreats this Court to
revisit this issue in light of Apprendi and its progeny, Ring v. Arizona, 536 U.S.
584 (2002) (Sixth Amendment is violated when a judge, rather than a jury,
determines the existence of aggravating factors when imposing the death penalty)
and Booker, 543 U.S. 220 (Sixth Amendment is violated when a court, relying
upon judge-found facts other than those of a prior conviction, mandatorily
increases a defendant’s sentence).
Following a similar challenge to the revocation of supervised release, the
Second Circuit thoroughly explained why jury trial rights do not attach to
revocation proceedings:
[A] sentence of supervised release by its terms involves a surrender
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of certain constitutional rights and this includes surrender of the due
process rights articulated in Apprendi. The full panoply of
procedural safeguards does not attach to revocation proceedings
because the Supreme Court has “distinguished revocation
proceedings from criminal prosecutions on the ground that a
probationer already stands convicted of a crime.” United States v.
Brown, 899 F.2d 189, 192 (2d Cir.1990) (emphasis added).
Consequently, it is evident that the constitutional rights
afforded a defendant subject to revocation of supervised release for
violation of its conditions are not co-extensive with those enjoyed by
a suspect to whom the presumption of innocence attaches. Given a
prior conviction and the proper imposition of conditions on the term
of supervised release, when a defendant fails to abide by those
conditions the government is not then put to the burden of an
adversarial criminal trial. Instead, there is, as in this case, a
revocation of release hearing at which, as the Supreme Court
instructs, neither the right to a jury trial, nor proof beyond a
reasonable doubt is required. As the Supreme Court has explained in
the context of parole, cf. Johnson, 529 U.S. at 710-11, 120 S. Ct.
1795 (noting “similarity” between supervised release and parole,
citing United States v. M eeks, 25 F.3d 1117, 1121 (2d Cir.1994)),
such proceedings “arise[ ] after the end of the criminal prosecution,
including imposition of sentence. . . . Revocation deprives an
individual, not of the absolute liberty to which every citizen is
entitled, but only of the conditional liberty properly dependent on
observance of special parole restrictions,” Gagnon [v. Scarpelli], 411
U.S. [778,] 781, 93 S.Ct. 1756 [(1973)] (quoting M orrissey, 408 U.S.
at 480, 92 S.Ct. 2593); see also [United States v.] Knights, 534 U.S.
[112,] 119, 122 S.Ct. 587 [(2001)] (“Inherent in the very nature of
probation is that probationers do not enjoy the absolute liberty to
which every citizen is entitled.”); United States v. Cranley, 350 F.3d
617, 621 (7th Cir.2003) (noting that “it has long been understood that
a fundamental and unchallenged condition of probation is that the
probationer surrender his right to trial by jury should the government
seek revocation, and thus imprisonment”).
...
There is no reason why the conditions of supervised release,
which uncontroversially deprive the convicted of substantive
constitutional rights, cannot also deprive the defendant of certain
procedural constitutional rights for a specified term and under
specific circumstances. In other words, it is of no constitutional
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concern that the conditions placed on a defendant’s liberty in
supervised release encompass by implication the additional condition
expressed in § 3583(e)(3): that the defendant surrender his rights to
trial by jury and to having accusations against him proved beyond a
reasonable doubt.
United States v. Carlton, 442 F.3d 802, 809–10 (2d Cir. 2006) (omission in
original). We agree fully with the Second Circuit’s analysis and accordingly
reject M r. Cordova’s constitutional challenge to 18 U.S.C. § 3583(e)(3) and Fed.
R. Crim. P. 32.1(b).
Although the foregoing is sufficient to dispose of all of M r. Cordova’s
constitutional challenges, we also note that Booker made clear that the Sixth
Amendment does not prohibit sentences based solely on facts admitted by the
defendant. Booker, 543 U.S. at 267. In this case, M r. Cordova admitted the facts
establishing that he violated the terms of his supervised release; therefore, there
was no transgression of the Sixth Amendment by use of judge-found facts. See
id.; United States v. Gonzalez-Huerta, 403 F.3d 727, 732 (10th Cir. 2005) (a
sentence based solely on facts admitted by the defendant does not violate the
Sixth Amendment). M oreover, Booker has no bearing in this case because the
imposition and revocation of supervised release has always been left to the
discretion of the court. See United States v. Rodriguez-Q uintanilla, 442 F.3d
1254, 1257 (10th Cir. 2006); see also United States v. Contreras-M artinez, 409
F.3d 1236, 1243 (10th Cir. 2005) (no Booker error when district court sentences
defendant under the advisory Chapter 7 policy statements).
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B. Reasonableness
M r. Cordova’s next argument is twofold: He contends that he should be
resentenced because the District Court failed to articulate the basis for imposing a
sentence higher than that recommended by the Guidelines and because the District
Court failed to explain why it ordered the two sentences to run concurrently.
W ith respect to M r. Cordova’s first contention, it is now axiomatic that a sentence
in excess of that recommended by the Chapter 7 policy statements w ill be upheld
“if it can be determined from the record to have been reasoned and reasonable.”
Rodriguez-Q uintanilla, 442 F.3d at 1258. W ith respect to his second argument,
we recently noted an “apparent incongruence in our precedent” as to the
applicable standard of review when reviewing the imposition of consecutive
sentences. Specifically, it is unclear post-Booker whether such decisions should
be reviewed for reasonableness or for an abuse of discretion. See id. (citing
Contreras-M artinez, 409 F.3d at 1241–42). W e need not explore “the exact
contours of our post-Booker standard of review,” id., however, because we
conclude that the District Court did not abuse its discretion and that the sentence
was both procedurally and substantively reasonable.
In imposing a sentence following revocation of supervised release, a
district court is required to consider both Chapter 7's policy statements, see
United States v. Tedford, 405 F.3d 1159, 1161 (10th Cir. 2005), as well as a
number of the factors provided in 18 U.S.C. § 3553(a), see 18 U.S.C. §§ 3583(e),
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3584(b); see also United States v. Rose, 185 F.3d 1108, 1111 (10th Cir. 1999).
The § 3553(a) factors include:
[T]he nature and circumstances of the offense; the history and
characteristics of the defendant; the need for the sentence imposed to
afford adequate deterrence, protect the public, and provide the
defendant with needed educational or vocational training, medical
care or other correctional treatment in the most effective manner;
pertinent guidelines; pertinent policy statements; the need to avoid
unwanted sentence disparities; and the need to provide restitution.
Contreras-M artinez, 409 F.3d at 1242 n.3.
The sentencing court, however, “is not required to consider individually each
factor listed in § 3553(a),” nor is it required to “recite any magic words to show
us that it fulfilled its responsibility to be mindful of the factors that Congress has
instructed it to consider” before issuing a sentence. Rodriguez-Q uintanilla, 442
F.3d at 1258–59 (internal quotations omitted); Tedford, 405 F.3d at 1161. After
review ing the record, we are satisfied that the District Court adequately
considered the relevant sentencing factors.
In sentencing M r. Cordova, the District Court stated:
W ell, the C ourt is certainly not unfamiliar with you, M r.
Cordova; you were just here, and the Court gave you an opportunity
to [take] kind of one last bite at the apple to go and try to w ork
through the program there, and it obviously hasn’t worked out for
you.
W hat this Court is going to order, I’m going to revoke your
supervised release in both these cases. I’m going to impose 12
months on the [second conviction]. I’m going to run that
consecutively with— I’m going to give you the statutory punishment
on the other case, [the first conviction], which will be 24 months. So
that will be a total of 36 months.
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I’m going to order the [Residential Drug Abuse Program]. It
takes about six to 12 months to get into that program. It’s a 500-
hour program. There’s nothing to say you have to do it, but I hope
you will take advantage of it.
. . . I do encourage you to take advantage of— only you are going to
be able to change your lifestyle, M r. Cordova.
The court clearly indicated that M r. Cordova’s repeated violations of the
terms of supervised release and the court’s familiarity with M r. Cordova’s
inability to conform his behavior to the terms of supervised release were
significant factors in sentencing. See 18 U.S.C. § 3553(a)(1) (courts must
consider “the nature and circumstances of the offense and the history and
characteristics of the defendant”); see also Tedford, 405 F.3d at 1161 (upholding
sentence four times longer than recommended by the Guidelines based upon the
defendant’s repeated violations of supervised release). M oreover, the District
Court indicated its concern that M r. Cordova’s failure to abide by the terms of
supervised release were due to his ongoing substance abuse problems, and
suggested M r. Cordova participate in a drug rehabilitation program for which he
would not be eligible for nearly twelve months and which would require an
additional nine months to complete. See 18 U.S.C. § 3553(a)(2)(D) (courts must
consider whether the defendant needs medical care or other correctional
treatment); see also Tsosie, 376 F.3d 1210, 1212 (10th Cir. 2004) (upholding
sentence twice the duration recommended by the Guidelines based upon the
defendant’s need for rehabilitation). As such, we find that the D istrict Court
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adequately considered the relevant sentencing factors.
For similar reasons, we also conclude that the length of M r. Cordova’s
sentence is reasonable. A district court has discretion to impose consecutive
sentences after the revocation of supervised release, see 18 U.S.C. § 3584, and
based upon M r. Cordova’s history of recidivism and substance abuse, we find the
exercise of that discretion reasonable in this case. Accordingly, M r. Cordova is
not entitled to be resentenced on this basis.
III. C ON CLU SIO N
A defendant in a supervised release revocation proceeding is not entitled to
indictment by a grand jury, to a jury trial, or to be found “guilty” of violating the
terms of his supervised release beyond a reasonable doubt. M r. Cordova’s
sentence following revocation was therefore not imposed in violation of the Sixth
Amendment. Further, the District Court did not abuse its discretion in imposing
the particular sentence, nor was the sentence unreasonable. W e therefore
AFFIRM .
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