United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
June 16, 2006
FOR THE FIFTH CIRCUIT
_____________________ Charles R. Fulbruge III
Clerk
No. 05-40327
_____________________
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
ANGEL ALFARO-HERNANDEZ,
Defendant - Appellant.
_________________________________________________________________
Appeal from the United States District Court
for the Southern District of Texas
_________________________________________________________________
Before GARZA, PRADO, and OWEN, Circuit Judges.
EDWARD C. PRADO, Circuit Judge:
Appellant Angel Alfaro-Hernandez (“Alfaro”) pled guilty to
transportation of an illegal alien, in violation of 8 U.S.C. §§
1324(a)(1)(A)(ii) and 1324(a)(1)(B)(ii). He was sentenced to 25
months imprisonment and three years of supervised release. Two
years into his supervised release, the district court found that
he had violated the terms of the release through (1) unauthorized
use of a motor vehicle, (2) assault, and (3) illegal re-entry and
failure to report immediately. As a result, the district court
revoked Alfaro’s supervised release and sentenced him to 24
months imprisonment pursuant to 18 U.S.C. § 3583. Alfaro argues
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for the first time on appeal that the 24-month sentence exceeds
the statutory maximum authorized by 18 U.S.C. § 3583 upon
revocation of supervised release when the underlying offense is a
Class E felony, as he claims his offense is. Alfaro contends
that the felony classification of his underlying crime is
determined by the 25-month sentence he received for violating §
1324. The Government responds that Alfaro’s sentence for
revocation of supervised release did not exceed the statutory
maximum because Alfaro’s underlying offense is a Class D felony,
for which § 3583 authorizes two years of imprisonment upon
revocation of supervised release. We find that the district
judge was correct in sentencing Alfaro to 24 months under 18
U.S.C. § 3583 and accordingly AFFIRM.
Because Alfaro’s argument requires us to interpret 18 U.S.C.
§ 3583(e)(3) and 8 U.S.C. §§ 1324(a)(1)(A)(ii) and
1324(a)(1)(B)(ii), we review the district court’s action de novo
and must determine whether it committed plain error. See United
States v. Lankford, 196 F.3d 563, 578 (5th Cir. 1999). After de
novo review of the statute, the plain error standard is
necessarily satisfied where the district court imposed a sentence
in excess of the statutory maximum. Id.
The issue in this case is whether or not the felony
classification of Alfaro’s underlying offense is determined by
the Guidelines range as calculated by the district court or
established by statute. Under § 3583(e)(3), a district court can
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impose a sentence of no more than 2 years upon revocation of
supervised release for a Class C or D felony and no more than 1
year in any other case. The statutes under which Alfaro was
convicted, 8 U.S.C. §§ 1324(a)(1)(A)(ii) and 1324(a)(1)(B)(ii) do
not specify the felony class. The sentencing classifications for
offenses that do not specify their class within their respective
statutes are found in 18 U.S.C. § 3559. That statute plainly
states:
An offense that is not specifically classified by a letter
grade in the section defining it, is classified if the
maximum term of imprisonment authorized is . . .
(4) less than 10 years but five or more years, as a
Class D felony;
(5) less than five years but more than one year, as a
Class E felony[.]
18 U.S.C. § 3559(a) (emphasis added). The plain language of the
statute indicates that the maximum term of imprisonment is
gleaned from the section defining the offense, not from the
maximum Guidelines sentence as calculated by the district court
and applicable to the defendant, as Alfaro argues.1 Offenses for
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Moreover, § 3559(b) adds that “an offense classified under
subsection (a) carries all the incidents assigned to the
applicable letter designation, except that, the maximum term of
imprisonment is the term authorized by the law describing the
offense.” 18 U.S.C. § 3559(b) (emphasis added). Reading §
3559(b) in conjunction with § 3559(a), Congress clearly intended
the maximum term of imprisonment, for purposes of determining an
offense’s class, to be “the term authorized by law describing the
offense.” See United States v. Cunningham, 292 F.3d 115, 118 (2d
Cir. 2002) (citing Nat’l Credit Union Admin. v. First Nat’l Bank
and Trust Co., 522 U.S. 479, 501 (1998) (recognizing the
“established canon of construction that similar language
contained within the same section of a statute must be accorded a
consistent meaning”).
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which the “maximum term of imprisonment authorized” are less than
10 years but five or more years are Class D felonies, while
offenses for which the “maximum term of imprisonment authorized”
is less than five years but more than one year are Class E
felonies.
Alfaro’s sentence does not exceed the statutory maximum.
Under 8 U.S.C. § 1324, a sentence of 5 years is authorized for
Alfaro’s offense; thus, under § 3559(a), his offense is a Class D
felony. For a Class D felony, § 3583 authorizes a sentence of no
more than 2 years upon revocation of supervised release. The
district court sentenced Alfaro to 24 months, within the
statutorily acceptable range. AFFIRMED.
Alfaro’s argument that § 3559(b) is unconstitutional in
light of United States v. Booker, 543 U.S. 220 (2005), holds no
merit as his case does not concern the issues involved in Booker
at all; Alfaro is not complaining that he was sentenced under a
mandatory Guidelines scheme based on facts not found by a jury or
admitted by him. Moreover, as we noted in United States v.
Hinson, sentences imposed upon revocation of supervised release
do not implicate Booker because the Guideline’s policy statements
applicable to sentencing upon revocation of supervised release
have always been advisory[,]” and Alfaro “faced the same maximum
sentence upon revocation of supervised release both before and
after Booker.” 429 F.3d 114, 119 (5th Cir. 2005).
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