IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 99-40513
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JESUS ALVARADO,
Defendant-Appellant.
Appeal from the United States District Court
for the Southern District of Texas
January 14, 2000
Before HIGGINBOTHAM and SMITH, Circuit Judges, and FALLON,*
District Judge.
HIGGINBOTHAM, Circuit Judge:
Jesus Alvarado appeals the revocation of his supervised
release. We AFFIRM.
I.
Alvarado served two prison terms, each with a term of
supervised release. He pleaded guilty to possession with intent to
distribute marijuana on November 4, 1991 and was later sentenced to
20 months' imprisonment to be followed by 3 years of supervised
release. With months remaining in his term, Alvarado escaped from
*
District Judge of the Eastern District of Louisiana, sitting
by designation.
a halfway house in Brownsville, Texas. For that offense, he was
sentenced on October 18, 1993, to 33 months' imprisonment, to be
followed by 3 years of supervised release. The supervised release
terms for the escape and marijuana convictions were to run
concurrently. The first sentence was imposed by the Corpus Christi
Division of the Southern District of Texas and the second by the
Brownsville Division of that court.
Alvarado was released from confinement and began the
supervised release terms September 26, 1995. Four months later,
the probation office in Brownsville filed a petition to revoke
Alvarado's supervised release on the escape conviction because he
violated its conditions. The Corpus Christi Division transferred
the revocation proceeding for the marijuana supervised release to
the Brownsville Division, which accepted the transfer March 15,
1996.
The court revoked the supervised release for the escape
conviction March 14, 1996, when Alvarado pleaded true to the
violations at the revocation proceeding. The record shows no
mention of the marijuana supervised release at the hearing. The
probation office filed a petition to revoke Alvarado's supervised
release on the marijuana conviction April 18, 1996, the day before
the sentencing hearing on the revocation of the escape supervised
release. At the sentencing hearing, Alvarado's attorney told the
court he wished to take up the marijuana supervised release, but
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the court decided not to do so. Alvarado did not appeal this
decision.
Alvarado was again released from confinement September 13,
1996. Within a few months, he violated the conditions of his
supervised release on the marijuana conviction, and the probation
office in Corpus Christi sought to revoke the supervised release.
Alvarado waived his right to a preliminary hearing. At the
revocation hearing, Alvarado moved to dismiss the petition on the
ground that the court lacked jurisdiction to continue his
supervised release after it revoked a concurrent term of supervised
release. He argued that the court's jurisdiction ended when his
supervised release for the escape conviction was revoked. The
court denied the motion. Alvarado pleaded true to the supervised
release violations, and the court revoked his supervised release
for the marijuana conviction and sentenced him to 12 months'
imprisonment. Alvarado timely appealed.
II.
This appeal presents a question of jurisdiction, which we
review de novo. See United States v. Lynch, 114 F.3d 61, 63 (5th
Cir. 1997).
Alvarado violated the conditions of the escape supervised
release by using cocaine, which was also a violation of the
marijuana supervised release. He argues that when the revocation
proceeding for the marijuana supervised release was transferred,
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the court was required to observe 18 U.S.C. § 3583(g), which
provides for mandatory revocation of supervised release for drug
possession in violation of a condition of supervised release.1
Because of this mandate, Alvarado continues, the court had to
revoke both supervised release terms when it found that he violated
their conditions by using cocaine. Alvarado contends that the
court was required to revoke the supervised release for the
marijuana conviction, so it could not leave it in effect. He
concludes that after the escape supervised release was revoked, he
was no longer on a supervised release for the marijuana conviction,
and the court lacked jurisdiction to revoke the latter.
The revocation of the escape supervised release did not
automatically terminate the marijuana supervised release.2 The
marijuana supervised release was not properly before the court at
the sentencing hearing for the escape supervised release
1
18 U.S.C. § 3605 provides that "[a] court to which
jurisdiction is transferred under this section is authorized to
exercise all powers over the probationer or releasee that are
permitted by this subchapter or subchapter B or D of chapter 227."
Section 3583(g) is in subchapter D of chapter 227, which governs
imprisonment. This provision requires revocation when a defendant
possesses a controlled substance. See United States v. Headrick,
963 F.2d 777, 779 (5th Cir. 1992). Drug use is equivalent to
possession for purposes of this provision. See United States v.
Courtney, 979 F.2d 45, 48 (5th Cir. 1992).
2
In a case with similar facts, the Eighth Circuit determined
that the revocation of one of four concurrent terms of probation
did not automatically revoke the remaining three, and that the
other probationary terms could be revoked later for subsequent
violations of their conditions. See McGaughey v. United States,
596 F.2d 796 (8th Cir. 1979)(per curiam).
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revocation. Alvarado's attorney did not raise the issue of the
marijuana supervised release until the sentencing hearing. As a
result, the procedural requirements of Fed. R. Crim. P. 32.1, which
governs revocation proceedings, had not been observed. Alvarado
had not pled, and there had been no preliminary hearing, formal
hearing or waiver of either. The probation office had filed a
petition to revoke the marijuana supervised release the day before
the sentencing hearing on the escape supervised release, which was
revoked a month before the hearing. Although the court would be
required to revoke Alvarado's supervised release for the marijuana
conviction, the issue was not properly presented to the court for
determination at the sentencing hearing. Under these
circumstances, the court's failure to render a decision about the
marijuana supervised release did not violate § 3583(g). In any
event, that supervised release was not automatically terminated,
and it remained in effect.
Alvarado argues that revoking the marijuana supervised release
violated the Ex Post Facto Clause. He pleaded guilty to the
marijuana charge in 1991, and § 3583(h), which permits the
reimposition of supervised release after revocation and subsequent
imprisonment, became effective in 1994.3 Before § 3583 became
3
Most Circuits hold that the application of amendments to the
statutes governing revocation of supervised release or parole
violates the Ex Post Facto Clause if the underlying criminal
conduct occurred before the amendment became effective, even though
the conduct causing the revocation occurred after the amendments'
effective date. See United States v. Byrd, 116 F.3d 770, 773 n.1
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effective, we did not permit the imposition of a second term of
supervised release after the revocation of a first one. See United
States v. Holmes, 954 F.2d 270, 272 (5th Cir. 1992).
No second supervised release was imposed for the marijuana
conviction, and its revocation did not implicate the Ex Post Facto
Clause. Under 18 U.S.C. § 3624(e), supervised release does not run
while a defendant is incarcerated for more than thirty days on
another conviction. Section 3624(e) became effective November 1,
1987, well before Alvarado's 1991 marijuana conviction, and it was
this provision that caused his supervised release for the marijuana
conviction to run after his release from prison for the revocation
of his escape supervised release.
Finally, Alvarado argues that the court's revoking one but not
both supervised release terms violates the provision of § 3624(e)
requiring that supervised release terms run concurrently. Section
3624(e) prohibits the imposition of consecutive supervised release
terms. See United States v. Hernandez, 162 F.3d 863, 877 (5th Cir.
1998). Alvarado's supervised release terms did not run
consecutively. Instead, Alvarado was sentenced for the marijuana
conviction, then the escape conviction, then his escape supervised
release was revoked, and finally his marijuana supervised release
was revoked. He was never sentenced to consecutive terms of
imprisonment or supervised release. Section 3624(e)'s requirement
(5th Cir.), cert. denied, 118 S. Ct. 354, 612 (1997).
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that supervised release terms run concurrently controls the date on
which a term of supervised release begins. See United States v.
Cotroneo, 89 F.3d 510, 513 (8th Cir. 1996); United States v.
Schmidt, 99 F.3d 315, 319 (9th Cir. 1999). We do not agree that
Alvarado's terms of supervised release had to end simultaneously
because they had to begin on the same date.
Alvarado believes the marijuana supervised release should have
been revoked at his first revocation proceeding in 1996, but he did
not appeal that decision. Now, when that supervised release has
been revoked, he argues that it evaporated with the first
revocation proceeding. We reject Alvarado's argument that the
revocation of one supervised release entailed the revocation of the
other. Because Alvarado was on supervised release for the
marijuana conviction, the district court had jurisdiction to revoke
that supervised release.
AFFIRMED.
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