United States v. Gonzalez

REVISED - June 12, 2001

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

____________________

No. 00-40572
____________________

UNITED STATES OF AMERICA

Plaintiff - Appellee

v.

MODESTO GONZALEZ

Defendant - Appellant

_________________________________________________________________

Appeal from the United States District Court
for the Southern District of Texas
_________________________________________________________________
May 3, 2001

Before KING, Chief Judge, and ALDISERT* and BENAVIDES, Circuit
Judges.

KING, Chief Judge:

Defendant-Appellant Modesto Gonzalez appeals from the

district court’s imposition of three consecutive terms of

imprisonment following the revocation of his concurrent terms of

supervised release. For the following reasons, we AFFIRM.

I. FACTUAL AND PROCEDURAL BACKGROUND

*
Circuit Judge of the Third Circuit, sitting by
designation.
 On November 21, 1997, pursuant to a plea agreement,

Defendant-Appellant Modesto Gonzalez pleaded guilty to three

counts of impersonating an officer or employee of the United

States, in violation of 18 U.S.C. § 912. On January 29, 1998,

the district court sentenced Gonzalez to serve three concurrent

terms of twenty-seven months in prison and, thereafter, to

continue his sentence by serving three concurrent terms of twelve

months supervised release.

Gonzalez was released from prison on November 19, 1999, and

began his concurrent terms of supervised release. On April 21,

2000, the U.S. Probation Office filed a superseding1 Petition for

Warrant for Offender Under Supervision, alleging another

violation of 18 U.S.C. § 912, together with charges of assault

and leaving the Southern District of Texas without permission.

On May 22, 2000, the district court held a hearing on the

superseding petition. At the hearing, Gonzalez stood silent to

each allegation, but pleaded true to the charge of leaving the

jurisdiction without permission. Following the testimony of one

witness and the submission of affidavits from other witnesses,

the district court concluded that the allegations in the petition

were true, revoked Gonzalez’s three terms of supervised release,

and sentenced Gonzalez to three consecutive twelve-month terms of

imprisonment.

1
The original petition was filed on March 31, 2000.

2
 Gonzalez timely appealed, challenging the propriety of the

consecutive sentences, together with the district court’s alleged

failures to consider certain sentencing factors and to state in

open court its reasoning for the sentences.

II. STANDARD OF REVIEW

This court “will uphold a sentence unless it (1) was imposed

in violation of law, (2) resulted from an incorrect application

of the guidelines, (3) was outside the guideline range and is

unreasonable, or (4) was imposed for an offense for which there

is no applicable sentencing guideline and is plainly

unreasonable.” United States v. Pena, 125 F.3d 285, 286 (5th

Cir. 1997) (internal quotations omitted) (quoting United States

v. Teran, 98 F.3d 831, 836 (5th Cir. 1996)); see also United

States v. Deavours, 219 F.3d 400, 402 (5th Cir. 2000). Because

there are no applicable guidelines for sentencing after

revocation of supervised release, see U.S. SENTENCING GUIDELINES

MANUAL ch. 7, pt. A, cmt. 1 (“At this time, the Commission has

chosen to promulgate policy statements only.”), this court will

uphold a sentence unless it is in violation of the law or plainly

unreasonable. See United States v. Stiefel, 207 F.3d 256, 259

(5th Cir. 2000); Pena, 125 F.3d at 287. In making this

determination, the court reviews de novo the district court’s

interpretation of the sentencing statutes. See United States v.

3
Teran, 98 F.3d 831, 835 (5th Cir. 1996); United States v.

Mathena, 23 F.3d 87, 89 (5th Cir. 1994).

III. THE IMPOSITION OF CONSECUTIVE SENTENCES UPON REVOCATION

OF CONCURRENT TERMS OF SUPERVISED RELEASE

Gonzalez contends that the district court’s revocation of

his terms of supervised release and its imposition of three

consecutive terms of imprisonment resulted in a sentence that

violates the law and is plainly unreasonable. Relying upon

language in United States v. Bachynsky, 934 F.2d 1349, 1353 (5th

Cir. 1991) (en banc), overruling on other grounds recognized by

United States v. Watch, 7 F.3d 422 (5th Cir. 1993), that “prison

terms following revocation of supervised release are served

concurrently,” Gonzalez asserts that the consecutive sentences

should be vacated.

Gonzalez also argues that the relevant statutes, 18 U.S.C.

§§ 3624(e)2 and 3583(e)(3),3 should be interpreted to preclude

2
Section 3624(e), entitled “Supervision after release,”
states in relevant part:

A prisoner whose sentence includes a term of supervised
release after imprisonment shall be released by the
Bureau of Prisons to the supervision of a probation
officer who shall, during the term imposed, supervise
the person released to the degree warranted by the
conditions specified by the sentencing court. The term
of supervised release commences on the day the person
is released from imprisonment and runs concurrently
with any Federal, State, or local term of probation or
supervised release or parole for another offense to
which the person is subject or becomes subject during
the term of supervised release.

4
consecutive prison sentences after revocation of concurrent terms

of supervised release. The Government responds that, under 18

U.S.C. § 3584(a),4 the district court had the authority and the

discretion to impose consecutive sentences upon the revocation of

Gonzalez’s concurrent terms of supervised release. We agree.

18 U.S.C. § 3624(e) (2000).
3
Section 3583(e)(3), entitled “Modification of
conditions or revocation,” provides:

The court may, after considering the factors set forth
in section 3553(a)(1), (a)(2)(B), (a)(2)(C), (a)(4),
and (a)(6)—
. . . .
revoke a term of supervised release, and require the
defendant to serve in prison all or part of the term of
supervised release without credit for time previously
served on postrelease supervision, if the court,
pursuant to the Federal Rules of Criminal Procedure
applicable to revocation of probation or supervised
release, finds by a preponderance of the evidence that
the defendant violated a condition of supervised
release, except that a defendant whose term is revoked
under this paragraph may not be required to serve more
than 5 years in prison if the offense that resulted in
the term of supervised release is a class A felony,
more than 3 years in prison if such offense is a class
B felony, more than 2 years in prison if such offense
is a class C or D felony, or more than one year in any
other case[.]

18 U.S.C. § 3583(e)(3) (2000).
4
Section 3584(a), dealing with multiple sentences of
imprisonment, provides in relevant part:

If multiple terms of imprisonment are imposed on a
defendant at the same time, or if a term of
imprisonment is imposed on a defendant who is already
subject to an undischarged term of imprisonment, the
terms may run concurrently or consecutively[.]

18 U.S.C. § 3584(a) (2000).

5
 Addressing first Gonzalez’s reliance upon the language

contained within Bachynsky, we note that the court’s statement

that “prison terms following revocation of supervised release are

served concurrently” was not dispositive language in that case.5

See 934 F.2d at 1253. Indeed, the Bachynsky decision did not

concern the revocation of terms of supervised release. Instead,

the court in that case was posing a hypothetical to demonstrate

that the district court’s failure to admonish the defendant

regarding the effect of a term of supervised release did not

affect the defendant’s substantial rights. The court concluded

that the district court’s failure was harmless because,

“assum[ing] arguendo” the “‘worst case’ hypothesis,” Bachynsky’s

sentence would still be less than the statutory maximum, and

therefore, Bachynsky’s substantial rights were not affected. See

id. Accordingly, while the language in Bachynsky may be

considered persuasive authority, it does not control our

resolution of the issue on appeal. See Ayoub v. INS, 222 F.3d

214, 215 (5th Cir. 2000) (“Dictum can be persuasive authority.”);

Soc’y of Separationists, Inc. v. Herman, 939 F.2d 1207, 1211 (5th

Cir. 1991) (“Dicta, however, is persuasive authority only, and is

not binding.”). Instead, we join the Courts of Appeals for the

Fourth, Eighth, Ninth, Tenth, and Eleventh Circuits and conclude

that the district court was well within its authority under

5
Gonzalez’s counsel conceded this point at oral argument,
referring to the language as “dicta with teeth.”

6
§ 3584 to impose consecutive sentences upon its revocation of

Gonzalez’s concurrent terms of supervised release. See United

States v. Rose, 185 F.3d 1108, 1110 (10th Cir. 1999); United

States v. Jackson, 176 F.3d 1175, 1178 (9th Cir. 1999); United

States v. Johnson, 138 F.3d 115, 118 (4th Cir. 1998); United

States v. Quinones, 136 F.3d 1293, 1294-95 (11th Cir. 1998);

United States v. Cotroneo, 89 F.3d 510, 513 (8th Cir.), cert.

denied, 519 U.S. 1018 (1996).

Regarding Gonzalez’s statutory arguments, he contends that

because § 3624(e)6 requires that multiple terms of supervised

release run concurrently, the prison sentences imposed upon

revocation of those supervised release terms should also run

concurrently. We note, however, that there is no case law or

statutory support for Gonzalez’s assertion that the wording of

§ 3624(e) requires terms of imprisonment following revocation of

concurrent terms of supervised release to run concurrently. By

its terms, § 3624(e) deals solely with the imposition of

supervised release, not the imposition of sentences following its

revocation. See 18 U.S.C. § 3624(e) (providing that a term of

supervised release “commences on the day the person is released

from imprisonment” and is to run concurrently with any other term

of supervised release); see also Johnson, 138 F.3d at 118;

Cotroneo, 89 F.3d at 513. Therefore, the district court was

6
Refer to supra note 2.

7
correct in relying upon § 3584 to determine whether the resulting

multiple terms of imprisonment were to be served concurrently or

consecutively. See id. § 3584(a); see also Jackson, 176 F.3d at

1178; Johnson, 138 F.3d at 118 (determining that § 3584 controls

the imposition of multiple sentences following revocation of

terms of supervised release); Quinones, 136 F.3d at 1294-95;

Cotroneo, 89 F.3d at 512 (“The decision to impose a consecutive

or concurrent sentence upon revocation of supervised release is

committed to the sound discretion of the district court.”).

Next, Gonzalez argues that the district court’s power to

alter the concurrent nature of simultaneously imposed supervised

release terms is “[s]ignificantly missing” from the list of the

court’s powers in § 3583(e)(3)7 and that the same subsection

narrows the district court’s discretion in sentencing supervised

release terms. We disagree. First, we conclude that the

district court “acted within the confines of . . . § 3583(e)(3)

[by] revok[ing Gonzalez]’s term of supervised release.”

Quinones, 136 F.3d at 1295. Furthermore, Gonzalez was originally

convicted of three class E felonies and was initially sentenced

to multiple terms of supervised release. As noted, however,

Gonzalez argues that the limiting language contained within

subsection (e)(3), that “a defendant may not be required to serve

. . . more than one year in any other case[, e.g., a class E

7
Refer to supra note 3.

8
felony,]” 18 U.S.C. § 3583(e)(3), means that the district court

could sentence him to a maximum of only one year. We believe

that § 3583(e)(3) does not limit to only one year Gonzalez’s

total time of imprisonment upon revocation of multiple terms of

supervised release. See Jackson, 176 F.3d at 1177-78 (rejecting

the defendant’s argument that the language in § 3583(e) limits

the amount of time that a defendant may spend in prison following

a revocation of supervised release). Instead, “a close reading

of the statute” reveals that the limiting language “refers to

[the district court’s discretion upon revocation of a term of

supervised release] to go beyond the original supervised release

term, capping the term of incarceration to the class of felony

originally committed.” Id. at 1178. Accordingly, because

Gonzalez had three such terms of supervised release, the district

court was within its authority to “revoke [the three terms] and

sentence [Gonzalez] to a term of imprisonment for each

violation.” Quinones, 136 F.3d at 1295; see also Cotroneo, 89

F.3d at 513 (interpreting § 3583(e)(3) and stating that “the

District Court acted properly . . . in sentencing Cotroneo to two

years of imprisonment for the credit card fraud conviction and

two years of imprisonment for the escape conviction”). The

district court was correct in then turning to § 3584(a) to

determine whether those terms of imprisonment should be served

concurrently or consecutively. See Rose, 185 F.3d at 1110;

9
Jackson, 176 F.3d at 1178; Johnson, 138 F.3d at 119; Quinones,

136 F.3d at 1295; Cotroneo, 89 F.3d at 513.

Gonzalez contends, however, that § 3584(a) does not apply to

sentences of imprisonment following revocation of terms of

supervised release. We conclude that § 3584(a) is not limited to

only those terms of imprisonment imposed after the initial

guilt/innocence phase of the proceeding. See 18 U.S.C.

§ 3584(a); see also Johnson, 138 F.3d at 118; Quinones, 136 F.3d

at 1294 (concluding that § 3584(a) “does not exclude from its

operation the imposition of imprisonment terms following the

revocation of terms of supervised release”); Cotroneo, 89 F.3d at

513. Instead, the section explicitly addresses the imposition of

concurrent or consecutive sentences in the situation of multiple

sentences of imprisonment (such as those that result after the

revocation of multiple terms of supervised release), and there is

no indication that § 3584(a) should not apply to sentencing

following the revocation of multiple terms of supervised release.

See 18 U.S.C. §§ 3584(a), 3583(e)(3), 3624(e); see also Quinones,

136 F.3d at 1294-95.

Gonzalez also asserts that § 3584(a) is inapplicable because

supervised release is not a “sentence of imprisonment”; rather,

it is a form of “post-imprisonment supervision.” To the

contrary, supervised release, while a form of post-imprisonment

supervision, is still considered to be a component of the

defendant’s total sentence. See 18 U.S.C. § 3583(a) (2000)

10
(providing that “[t]he court, in imposing a sentence . . . , may

include as a part of the sentence a requirement that the

defendant be placed on a term of supervised release after

imprisonment” (emphasis added)); id. § 3624(e) (referring to “[a]

prisoner whose sentence includes a term of supervised release

after imprisonment” (emphasis added)); United States v. Benbrook,

119 F.3d 338, 341 n.10 (5th Cir. 1997) (“A period of supervised

release is a part of the defendant’s sentence.”). Also,

Gonzalez’s contention is inapposite because once a term of

supervised release is revoked, the district court is then dealing

with a “term of imprisonment,” thus triggering § 3584(a).

Finally, simply as a matter of statutory construction, 18 U.S.C.

§ 3551(b)(3), which provides for general sentencing provisions,

vests the court with authority to impose “a term of imprisonment

as authorized by subchapter D.” Id. (emphasis added).

Subchapter D encompasses § 3581 to § 3584, which include § 3583,

concerning revocation of a term of supervised release. As such,

the provisions regarding terms of imprisonment include the

provision regarding revocation of supervised release and should

be read together in pari materia.

Lastly, Gonzalez argues that § 3583(e)(3) is ambiguous,

asking this court to apply the rule of lenity in favor of

concurrent terms. As Gonzalez concedes, the rule of lenity

applies only when a statute is ambiguous. See United States v.

Zavala-Sustaita, 214 F.3d 601, 604 (5th Cir.), cert. denied, 121

11
S. Ct. 434 (2000); United States v. Cyprian, 197 F.3d 736, 739-40

(5th Cir. 1999), cert. denied, 121 S. Ct. 65 (2000). Moreover,

the rule of lenity is a narrow rule that “applies only when ‘a

reasonable doubt persists about a statute’s intended scope even

after resort to the language and structure, legislative history,

and motivating policies of the statute.’” Zavala-Sustaita, 214

F.3d at 608 n.11; see also United States v. Marek, 238 F.3d 310,

322 (5th Cir. 2001). Based upon the preceding analysis, we

conclude that the meaning of § 3583(e)(3) is unambiguous. As

such, the rule of lenity is inapplicable in this case.8

In sum, after canvassing our sister circuits’ analyses of

the propriety of consecutive sentences upon revocation of

concurrent terms of supervised release, and after our own

independent review of the statutory sections relevant to this

inquiry, we conclude that the district court was within its

authority to impose consecutive terms of imprisonment following

the revocation of Gonzalez’s three concurrent terms of supervised

release.

8
We also reject Gonzalez’s contention that the policy
statements in chapter seven of the Sentencing Guidelines should
be read to preclude consecutive sentencing. “These policy
statements . . . say nothing about concurrence or
consecutiveness.” Quinones, 136 F.3d at 1295. Thus, “[t]his
silence leaves intact the district court’s statutory discretion.”
Id.

12
 IV. CONSIDERATION OF THE 18 U.S.C. § 3553(a) SENTENCING FACTORS

AND THE DISTRICT COURT’S REASONS BEHIND ITS IMPOSITION OF

CONSECUTIVE PRISON TERMS

Gonzalez argues alternatively that in exercising its

discretion under 18 U.S.C. § 3584(a), the district court was

required to consider the factors contained in 18 U.S.C.

§ 3553(a).9 See 18 U.S.C. §§ 3583(e), 3584(b). Furthermore,

9
Pursuant to § 3583(e), when imposing a sentence upon
revocation of supervised release, the district court is to turn
to the factors of § 3553(a), which provides in relevant part:

(a) Factors to be considered in imposing a sentence.—
. . . . The court, in determining the particular
sentence to be imposed, shall consider—
(1) the nature and circumstances of the offense and
the history and characteristics of the defendant;
(2) the need for the sentence imposed—
. . . .
(B) to afford adequate deterrence to criminal
conduct;
(C) to protect the public from further crimes of
the defendant; and
(D) to provide the defendant with needed
educational or vocational training, medical care,
or other correctional treatment in the most
effective manner;
. . . .
(4) the kinds of sentence and the sentencing range
established for—
. . . .
(B) in the case of a violation of probation or
supervised release, the applicable guidelines or
policy statements issued by the Sentencing
Commission . . .
(5) any pertinent policy statement issued by the
Sentencing Commission . . .
(6) the need to avoid unwarranted sentence
disparities among defendants with similar records
who have been found guilty of similar conduct[.]

13
Gonzalez asserts that the district court did not state in open

court its reasons for imposing the consecutive sentences, in

violation of 18 U.S.C. § 3553(c).

After finding that a defendant has violated a condition of

supervised release, the district court must consider the factors

contained in 18 U.S.C. § 3553(a) in determining the sentence to

be imposed. See United States v. Teran, 98 F.3d 831, 836 (5th

Cir. 1996); see also United States v. Pena, 125 F.3d 285, 286

(5th Cir. 1997). “Implicit consideration of the § 3553 factors

is sufficient.” Teran, 98 F.3d at 836; see also United States v.

Izaguirre-Losoya, 219 F.3d 437, 440 (5th Cir. 2000), cert.

denied, 121 S. Ct. 827 (2001). In United States v. Izaguirre-

Losoya, the district court failed to make a statement on the

record from which consideration of the § 3553(a) factors could

have been inferred; still, the court concluded that “[a]bsent a

contrary indication in the record, such evidence [that the

district court considered the Presentence Report and arguments of

defense counsel] implies that the district court was aware of and

considered the § 3553(a) factors.” 219 F.3d at 440. “This

approach is based on the presumption that district courts know

the applicable law and apply it correctly [and also] on the

belief that ‘Congress never intended . . . for sentencing to

become a hyper-technical exercise devoid of common sense.’” Id.

18 U.S.C. § 3553(a) (2000); see also 18 U.S.C. § 3583(e).

14
(second alteration in original) (footnote omitted) (quoting

United States v. Johnson, 138 F.3d 115, 119 (4th Cir. 1998)).

After our review of the sentencing transcript, we conclude

that the district court implicitly considered the § 3553(a)

factors in sentencing Gonzalez. At the hearing, the district

court observed that Gonzalez “doesn’t do well on supervised

release” and that it did not “see much point in putting Probation

out to keep track of the next run of offenses.” Moreover,

because the district court wished to impose the maximum sentence

upon the revocation of Gonzalez’s supervised release terms, it

and both parties’ counsel went to considerable lengths to

determine whether consecutive terms were proper. Furthermore, we

note that the district court judge presiding over Gonzalez’s

sentencing after revocation of supervised release was the same

judge who imposed the initial sentence. At the initial

sentencing hearing, the district court explicitly considered

Gonzalez’s history, the need to protect the public, and the need

for deterrence. In conclusion, after our review of the record,

we find no “contrary indication” that would lead us to believe

that the district court did not apply the applicable law

correctly, such to render Gonzalez’s sentence plainly

unreasonable. See Izaguirre-Losoya, 219 F.3d at 440; United

States v. Stiefel, 207 F.3d 256, 259 (5th Cir. 2000); Pena, 125

F.3d at 287.

15
 Regarding the district court’s failure to state the reasons

for Gonzalez’s sentence in open court, Gonzalez admits that he

did not object at the time of sentencing, perhaps because the

court’s reasons were perfectly clear to all present. However, we

review this claimed error for plain error only. See Izaguirre-

Losoya, 219 F.3d at 441.10 Gonzalez argues that the district

court’s failure to state its reasoning on the record impaired his

substantial rights, and therefore, he asserts that his sentence

must be vacated.

18 U.S.C. § 3553(c) requires that “[t]he court, at the time

of sentencing, . . . state in open court the reasons for its

imposition of the particular sentence.” 18 U.S.C. § 3553(c). In

Izaguirre-Losoya, this court concluded that, even assuming under

the plain error standard that the district court’s failure to

state its reasoning in open court was an error that was clear or

obvious, the defendant had not shown that his substantial rights

10
Under the plain error standard,

we may correct forfeited errors only if (1) there is an
error, (2) that is clear or obvious, and (3) that
affects [the defendant’s] substantial rights. Even if
those factors are met, however, correction of the error
is discretionary and this court will not exercise that
discretion unless the error seriously affects the
fairness, integrity, or public reputation of judicial
proceedings.

Izaguirre- Losoya, 219 F.3d at 441 (internal quotations and
footnotes omitted) (alteration in original) (quoting United
States v. Ferguson, 211 F.3d 878, 886 (5th Cir.), cert. denied,
121 S. Ct. 258 (2000)).

16
had been affected. See 219 F.3d at 441. The Izaguirre-Losoya

court explained that because the district court was within its

discretion to impose consecutive sentences given the defendant’s

criminal background and because the parties informed the court of

the reasons for and against consecutive sentencing, “the sentence

imposed was supported by the record and not contrary to law.”

Id. Therefore, the court concluded that the defendant’s

substantial rights were not affected. See id. at 442; cf. United

States v. Zanghi, 209 F.3d 1201, 1204 (10th Cir. 2000)

(concluding, under an abuse of discretion standard, that the

court need not make particularized findings on each factor).

Gonzalez has failed to demonstrate that any alleged error on

the part of the district court affected his substantial rights.

As our discussion in Part III supra indicates, the district court

was not required to impose a concurrent sentence and was within

its discretion to impose consecutive sentences. The district

court and the parties extensively discussed the propriety of

imposing consecutive sentences. The record demonstrates that

substantial effort went into ensuring that Gonzalez’s sentence

was appropriate, considering his criminal history and the

district court’s belief that Gonzalez would repeat the offense.

Moreover, as we noted above, the same district court judge

presided over the revocation hearing and the original sentencing

hearing and was well aware of Gonzalez’s criminal background.

17
 Accordingly, even assuming that there was error and it was

plain, we conclude that the total sentence imposed did not affect

Gonzalez’s substantial rights because Gonzalez’s sentence is

supported by the record and is not contrary to law. Furthermore,

any alleged failure by the district court does not rise to the

level of “seriously affect[ing] the fairness, integrity, or

public reputation of judicial proceedings.” Izaguirre-Losoya,

219 F.3d at 441.

V. CONCLUSION

For the foregoing reasons, we AFFIRM the consecutive terms

of imprisonment imposed by the district court after its

revocation of Gonzalez’s concurrent terms of supervised release.

18