United States Court of Appeals
For the First Circuit
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No. 99-2078
UNITED STATES,
Appellee,
v.
MANUEL BERMUDEZ-PLAZA,
Defendant, Appellant.
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APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Gilberto Gierbolini-Ortiz, Senior U.S. District Judge]
[Hon. Justo Arenas, U.S. Magistrate Judge]
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Before
Torruella, Chief Judge,
Lipez, Circuit Judge,
and Keeton,* District Judge.
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Edgardo Rodríguez-Quilichini, Assistant Federal Public Defender,
Appellate Section, and Joseph C. Laws, Jr., Federal Public Defender, on
brief for appellant.
Camille Vélez-Rivé, Assistant United States Attorney, Jorge E.
Vega-Pacheco, Assistant United States Attorney, Chief, Criminal
Division, and Guillermo Gil, United States Attorney, on brief for
appellee.
* Of the District of Massachusetts, sitting by designation.
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August 2, 2000
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TORRUELLA, Chief Judge. When appellant Manuel Bermúdez-Plaza
violated the conditions of his supervised release, the court revoked
his original term of supervised release and sentenced him to nine
months' imprisonment to be followed by another year of supervised
release. Appellant claims on appeal that this sentence violated the Ex
Post Facto Clause of the United States Constitution and was the result
of an unlawful petition by his probation officer. Neither argument has
merit, and we affirm the district court's judgment and sentence.
I. Background
Appellant pled guilty in 1992 to possession with intent to
distribute cocaine. He was sentenced in March 1993 to sixty months'
imprisonment, to be followed by four years of supervised release.
Appellant completed his term of imprisonment and began serving his term
of supervised release in 1997.
On June 11, 1999, a United States Probation Officer filed
a document entitled "Motion Notifying Violations of Supervised Release
Conditions and Request for the Issuance of an Arrest Warrant" informing
the court that appellant had tested positive for illegal drug use
(cocaine) on several occasions in May of that year. A Supplement filed
June 17, 1999 notified the court of further positive results for
cocaine use.
On June 22, 1999, the district court ordered appellant to
show cause why his supervised release should not be revoked, and an
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arrest warrant issued. A hearing was held on August 10, 1999, and
judgment was entered on August 16, 1999 revoking appellant's existing
term of supervised release and sentencing him to nine months'
imprisonment to be followed by one year of supervised release.
Appellant timely filed a notice of appeal. He now claims (1)
that the imposition of a prison term and a new term of supervised
release violated the Ex Post Facto Clause because the law at the time
of his original offense permitted the imposition of imprisonment or
supervised release, but not both; and (2) that the "motion" filed by
the probation officer was unlawful because it exceeded the officer's
statutory authority, violated the separation of powers, and constituted
the unlicensed practice of law.
II. Law and Application
A. Ex Post Facto Claim
Appellant argues that the imposition of both a term of
imprisonment and a term of supervised release violated the Ex Post
Facto Clause because the law existing at the time of his original
offense allowed only the imposition of one or the other form of
punishment, not both. However, particularly in light of recent Supreme
Court precedent, this argument must fail.
Appellant's claim is disposed of by the United States Supreme
Court's recent decision in the factually indistinguishable case of
Johnson v. United States, 120 S. Ct. 1795 (2000). In Johnson, the
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Supreme Court held that the current provision governing the imposition
of supervised release following a revocation, 18 U.S.C. § 3583(h), does
not apply retroactively to the revocation of supervised release for an
individual whose original offense occurred before § 3583(h)'s effective
date of September 13, 1994. See id. at 1802. Consequently, the Court
rejected the petitioner's ex post facto argument and determined that
the validity of the petitioner's sentence depended solely on whether
the imposition of supervised release following reimprisonment was
authorized by 18 U.S.C. § 3583(e), the statutory provision in effect at
the time of petitioner's original offense. See id. The Court
concluded, as we had previously in United States v. O'Neil, 11 F.3d 292
(1st Cir. 1993), that § 3583(e) permits a sentencing court, upon
revocation of an individual's supervised release, to impose both a term
of imprisonment and a term of supervised release. See Johnson, 120 S.
Ct. at 1807. Petitioner's sentence was therefore upheld.
The case currently before us is indistinguishable from
Johnson. Appellant's original offense occurred in 1992, and revocation
of his supervised release is therefore governed by 18 U.S.C. § 3583(e).
Because § 3583(e) permits a sentencing court, upon the revocation of
supervised release, to impose a sentence of imprisonment followed by a
term of supervised release, the district court's sentence in this case
was proper and is affirmed.
B. Claim of Unlawful Action by Probation Officer
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Appellant's second claim is that the probation officer's
motion which precipitated the revocation of his supervised release was
unlawfully filed. He argues that the probation officer exceeded her
statutory authority, violated the separation of powers, and engaged in
the unlicensed practice of law. Each of these contentions has been
considered and rejected by other courts of appeals, and we largely
adopt their reasoning.
1. Statutory Authority
Probation officers are authorized and required by law to,
inter alia, keep informed as to the conduct and condition of a person
on supervised release and to report such conduct and condition,
including any violations of the conditions of release, to the
sentencing court. See 18 U.S.C. § 3603(2), (8)(B). Appellant claims
that, by going one step further and recommending a course of action to
the district court, the probation officer exceeded her authority under
18 U.S.C. § 3603. We disagree.
As the United States Courts of Appeals for both the Ninth and
Tenth Circuits have recognized, a motion such as that filed by the
probation officer in this case is merely an exercise of the officer's
statutory duty to "report" to the district court on the conduct and
conditions of a person on supervised release. See United States v.
Mejía-Sánchez, 172 F.3d 1172, 1174-75 (9th Cir. 1999); United States v.
Davis, 151 F.3d 1304, 1307 (10th Cir. 1998). When a probation officer
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includes in her report a recommended course of action, she is merely
assisting the district court in its evaluation of the alleged
violation, as is required of her as an investigatory and supervisory
agent of the Judiciary. See Mejía-Sánchez, 172 F.3d at 1175 (citing
United States v. Burnette, 980 F. Supp. 1429, 1433 (M.D. Ala. 1997)).
In light of the valuable assistance rendered by probation officers to
district courts, we decline to read § 3603 so narrowly as to prohibit
a probation officer from providing the court with the benefit of her
professional experience, both in general and with regard to the
particular individual at issue, in the form of a suggested course of
action.
2. Separation of Powers
Appellant's next argument -- that the motion violated the
separation of powers because only the Attorney General may initiate
revocation proceedings -- also fails. As the Ninth and Tenth Circuits
have noted, revocation hearings are not criminal proceedings and
neither the Attorney General nor any other officer is solely
responsible for their initiation. See id.; Davis, 151 F.3d at 1307.
To the contrary, the sentencing court may initiate revocation
proceedings sua sponte whenever it learns of a possible violation of an
individual's conditions of release. See Mejía-Sánchez, 172 F.3d at
1175; Davis, 151 F.3d at 1307. Moreover, it is the court and the court
alone that ultimately decides whether or not revocation proceedings
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shall be initiated and, if initiated, what consequences will befall the
individual who has violated his conditions of release. See Mejía-
Sánchez, 172 F.3d at 1175; Davis, 151 F.3d at 1307. In reporting
suspected violations, and even in recommending a particular course of
action, the probation officer is simply performing her statutory duty
to assist the court in its supervision of individuals on supervised
release, which supervision is an integral part of the courts'
quintessentially judicial sentencing responsibility. See Mejía-
Sánchez, 172 F.3d at 1175 (citing Davis, 151 F.3d at 1308).
We hold that the motion filed in this case was fully
consistent with the probation officer's statutorily mandated role as an
assistant to the district court and, as such, did not offend the
separation of powers.
3. Unlicensed Practice of Law
Finally, we follow the Tenth Circuit in rejecting the
argument that, by filing a "motion" recommending a course of action,
the probation officer engaged in the unlicensed practice of law. See
Davis, 151 F.3d at 1308. The probation officer here was engaged not in
the practice of law, but rather in the performance of her statutory
duty to monitor the conduct and condition of an individual on
supervised release and to report such conduct and condition, including
any violations of the conditions of release, to the sentencing court.
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See 18 U.S.C. § 3603(2), (8)(B). She was acting as an agent of the
Judiciary itself, not as a practicing attorney.
III. Conclusion
For the reasons set forth above, we conclude (1) that the
imposition of both a term of imprisonment and a further term of
supervised release following revocation of appellant's supervised
release did not violate the Ex Post Facto Clause and was permitted by
the applicable statute, 18 U.S.C. § 3583(e); and (2) that the motion
filed by the probation officer was lawful and proper. We therefore
affirm the judgment and sentence entered by the district court.
Affirmed.
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