United States Court of Appeals
For the First Circuit
No. 07-1050
UNITED STATES OF AMERICA,
Appellee,
v.
JOSE MARCANO,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. José Antonio Fusté, U.S. District Judge]
Before
Boudin, Chief Judge,
Lynch, Circuit Judge,
and Stahl, Senior Circuit Judge.
Ramon M. Gonzalez, by appointment of the court, was on brief
for appellant.
Rosa Emilia Rodriguez-Velez, United States Attorney, with whom
Nelson Pérez-Sosa and Mariana E. Bauzá-Almonte, Assistant United
States Attorneys, were on brief for appellee.
May 12, 2008
Per Curiam. Jose Marcano pleaded guilty to one count of
aiding and abetting the receipt and possession of an illegally
modified firearm in violation of 26 U.S.C. §§ 5822 and 5845. On
August 29, 2002, the district court sentenced Marcano to a term of
thirty-three months' imprisonment, to be followed by three years of
supervised release. On October 6, 2006, following revocation
proceedings, the district court revoked Marcano's supervised
release and sentenced him to eighteen months' imprisonment to be
followed by one year of supervised release, during the first 180
days of which he was to be subject to limited home confinement.
Marcano appeals, contesting the legality of his sentence.
The conditions which a district court may attach to
supervised release are spelled out by 18 U.S.C. § 3583(d). Section
§ 3583(d), inter alia, permits a district court to prescribe "any
condition that is set forth as a discretionary condition of
probation in section 3563(b)(1) through (b)(10) and b(12) through
(b)(20)." Here, the district court chose to impose a condition of
release requiring Marcano to submit to home confinement pursuant to
§ 3563(b)(19).
Marcano contends that the plain language of § 3563(b)(19)
forbids its application where any term of incarceration is imposed.
See 18 U.S.C. § 3563(b)(19). Because he raises this issue for the
first time on appeal, we review only for plain error. See United
States v. Sanchez-Berrios, 424 F.3d 65, 81 (1st Cir. 2005)
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(applying plain error doctrine in reviewing conditions of
supervised release).
Section 3563(b)(19) provides that "a condition under this
paragraph may be imposed only as an alternative to incarceration."
18 U.S.C. § 3563(b)(19) (emphasis added). Thus, Marcano reasons
that the district court erred by imposing home confinement during
supervised release to follow his eighteen-month period of
incarceration. The Government, in essence, responds that Marcano's
interpretation is flawed because it ignores the effect of § 3583,
which deals exclusively with supervised release following
imprisonment, upon § 3563(b)(19). Because § 3583(d)(1)
specifically authorizes the condition of home confinement set forth
by § 3563(b)(19), and supervised release necessarily follows
incarceration, the Government argues that lower courts may order
home confinement beyond the maximum period of incarceration.
Even assuming arguendo that Congress intended home
confinement to be a substitute for incarceration, it does not
follow that Marcano's sentence is illegal. As Marcano concedes,
the district court was authorized to impose a maximum sentence of
up to two years' imprisonment. 18 U.S.C. § 3583(e)(3). The total
period of imprisonment, eighteen months, plus the ensuing period of
home confinement, 180 days, does not exceed the statutory maximum
term of imprisonment of two years. Thus, to afford Marcano relief,
we would have to conclude that the imposition of any period of
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incarceration pursuant to § 3583(e)(3) necessarily precludes any
home confinement during the ensuing period of supervised release.
The statutory text certainly surely does not compel such a reading,
and Marcano cites to no authority adopting this approach.
Indeed, in United States v. Ferguson, 369 F.3d 847 (5th
Cir. 2004), when faced with a nearly identical claim, the Fifth
Circuit determined that "a court [may] not impose both a term of
incarceration (upon revocation of supervised release) and
subsequent home detention during a reimposed term of supervised
release that, when combined, exceeds the allowable maximum
incarceration term." Id. at 851; accord United States v. Leaphart,
98 F.3d 41, 43 (2d Cir. 1996) (following similar approach under
sentencing guidelines); see also United States v. Roy, 506 F.3d 28,
31 (1st Cir. 2007) (holding that district court's failure to count
time spent during community confinement was not plain error).
Without explicitly reaching the issue, the Fifth Circuit's
reasoning in Ferguson strongly implies that a court may combine
incarceration and home confinement under § 3563(b)(19) provided
that the total period of incarceration plus home confinement during
supervised release does not exceed the statutory maximum that the
defendant may be incarcerated. 369 F.3d at 850-52.
In sum, Marcano has made a colorable argument that the
district court could not have imposed a period of incarceration and
supervised release involving home confinement in excess of two
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years, the statutory maximum. It did not do so. Marcano's real
argument, that a district court may not impose any period of home
detention following incarceration is tenuous at best, and he fails
to cite any applicable precedent. That which exists points the
other way. See id. At the every least, any error was not plain.
See United States v. Caraballo-Rodriguez, 480 F.3d 62, 70 (1st Cir.
2007) (holding that plain error cannot be found in case law absent
clear and binding precedent). Accordingly, we reject Marcano's
challenge to his sentence.
Affirmed.
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