NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 05a0303n.06
Filed: April 19, 2005
No. 04-6102
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
UNITED STATES OF AMERICA, )
)
Plaintiff-Appellee, ) ON APPEAL FROM THE
) UNITED STATES DISTRICT
v. ) COURT FOR THE WESTERN
) DISTRICT OF TENNESSEE
ISMAEL OLIVO, )
) OPINION
Defendant-Appellant. )
_______________________________________)
Before: KENNEDY and MOORE, Circuit Judges and RESTANI,* Court of International
Trade Judge.
KAREN NELSON MOORE, Circuit Judge. Defendant-Appellant Ismael Olivo (“Olivo”)
committed various violations of the terms of his supervised release and the district court sentenced
him to an additional eight months’ imprisonment to be served following the expiration of an
undischarged state sentence. On appeal, Olivo concedes that he violated the terms of his supervised
release but argues that the district court erred in failing to order that his sentence run concurrently
with his undischarged state sentence rather than consecutively. We AFFIRM the district court’s
judgment as this claim lacks merit.
*
The Honorable Jane A. Restani, Chief Judge of the United States Court of International
Trade, sitting by designation.
I. BACKGROUND
After his federal conviction in 1997 in the United States District Court for the Western
District of Tennessee for possession with intent to distribute cocaine, Olivo received a sentence of
63 months’ imprisonment to be followed by four years of supervised release. Olivo began serving
his supervised release term on January 2, 2002, in the Southern District of Texas. Several months
later Olivo was arrested in Corpus Christi, Texas for possession of cocaine and domestic assault.
Olivo subsequently pleaded guilty in state court to charges stemming from this arrest and was
sentenced to ten years of imprisonment on the cocaine charge and ninety days of imprisonment on
the assault charge.
On October 4, 2002, a supervised release petition was filed in district court alleging that
Olivo had violated numerous terms of his supervised release, and an arrest warrant was issued. A
writ of habeas corpus ad prosequendum was then issued for Olivo, and the State of Texas
surrendered Olivo into federal custody in order to permit a supervised-release-violation hearing to
be held. A hearing was held on September 1, 2004, during which Olivo admitted to violating the
conditions of his supervised release. During the hearing, Olivo’s counsel argued that the district
court ought to order his federal sentence to be served immediately, prior to Olivo’s return to state
custody, in order to ensure that his state sentence would run concurrently with this federal sentence.
The district court rejected the defense counsel’s argument and ordered Olivo’s federal sentence to
begin following his release from state custody. The district court then sentenced Olivo to eight
months’ imprisonment to be served after the completion of Olivo’s state sentence. Olivo filed this
timely appeal.
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II. ANALYSIS
Olivo does not challenge the length of his imprisonment, only the district court’s failure to
order that Olivo’s federal sentence be served prior to his return to state custody so that the two
sentences could be served concurrently. We review for abuse of discretion the sentence imposed
by a district judge following a hearing on supervised-release violations. United States v.
Washington, 147 F.3d 490, 491 (6th Cir.), cert. denied, 525 U.S. 954 (1998) (“We review the district
court's sentence upon revocation of a defendant's supervised release for an abuse of discretion.”);
see also United States v. Devaney, 992 F.2d 75, 77 (6th Cir.), cert. denied, 510 U.S. 886 (1993)
(“Decisions whether to order consecutive or concurrent sentences are reviewed for abuse of
discretion.”). Generally, we will affirm a district court’s sentencing determination following
revocation of supervised release so long as the district court has considered the relevant statutory
factors and the district court’s determination is not plainly unreasonable. United States v.
McClellan, 164 F.3d 308, 309 (6th Cir. 1999).1
United States Sentencing Guideline (“U.S.S.G.”) § 7B1.3(f) is instructive on the issue of a
district court’s decision to impose consecutive or concurrent sentences at a supervised-release-
revocation hearing. Specifically, U.S.S.G. § 7B1.3(f) provides that:
Any term of imprisonment imposed upon the revocation of probation or supervised
release shall be ordered to be served consecutively to any sentence of imprisonment
that the defendant is serving, whether or not the sentence of imprisonment being
served resulted from the conduct that is the basis of the revocation of probation or
supervised release.
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In United States v. Johnson, – F.3d –, No. 04-1538 (6th Cir. Apr. 15, 2005), we recognized
the question whether the “plainly unreasonable” standard for reviewing revocation of supervised
release has been supplanted by the “reasonableness” standard in United States v. Booker, 125 S. Ct.
738 (2005). Johnson, slip op. at 3-4. As in Johnson, we need not decide this issue in this case,
because the district court satisfies both standards. Id. at 4.
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The district court followed this policy statement when it declined to order that Olivo’s federal
sentence begin immediately.
The policy statement embodied in U.S.S.G. § 7B1.3(f) was not binding on the district court.
As we indicated in United States v. Sparks, 19 F.3d 1099 (6th Cir. 1994), while a district judge must
consider U.S.S.G. § 7B1.3(f), where applicable, when imposing a sentence for a supervised-release
violation, a district judge is not bound by its terms. Id. at 1101-02. Nonetheless, the district court
had the discretion to apply this policy statement as a guideline when determining whether to delay
the start of Olivo’s federal sentence. Olivo has provided us with no evidence suggesting that the
district court abused its discretion by deciding to follow the policy statement in U.S.S.G. § 7B1.3(f)
under the circumstances of this case. On the contrary, Olivo’s brief appears to concede that the
district court was within its discretion in declining to order the immediate execution of Olivo’s
federal sentence. Appellant Br. at 11 (noting that the issue of whether the district court erred in
failing to order the immediate execution of the federal sentence “appears to be one of discretion”).
Furthermore, the district court was careful to explain at sentencing that his decision to
decline to order the immediate execution of Olivo’s sentence was based not only on the Guidelines
policy but also on his belief that this was proper outcome in this case. The district judge indicated
that he felt that permitting the state sentence to be discharged prior to the execution of the federal
sentence was “the right decision under all the facts and circumstances in the case” despite any
discretion he might have to reach a contrary decision. Joint Appendix (“J.A.”) at 56 (Tr. of
Supervised Release Violation Hr’g at 33); see also J.A. at 57 (Tr. of Supervised Release Violation
Hr’g at 34) (noting that Olivo was being returned to state custody not because the district court had
lacked the authority to order the immediate execution of Olivo’s federal sentence but because there
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were “good reasons to allow the process to proceed as the court has indicated.”). Given the
circumstances of this case, Olivo has therefore failed to establish that the district court’s sentencing
determination constituted an abuse of discretion or was unreasonable.
III. CONCLUSION
For the reasons stated above, we AFFIRM the district court’s judgment.
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