United States v. Pineda

     Case: 08-41301   Document: 00511010538      Page: 1   Date Filed: 01/22/2010




          IN THE UNITED STATES COURT OF APPEALS
                   FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                   Fifth Circuit

                                                FILED
                                                                  January 22, 2010

                                   No. 08-41301                Charles R. Fulbruge III
                                                                       Clerk

UNITED STATES OF AMERICA,

                                                           Plaintiff–Appellee
v.

JOSE CARLOS PINEDA,

                                                           Defendant–Appellant


                   Appeal from the United States District Court
                        for the Southern District of Texas


Before JONES, Chief Judge, and SMITH and ELROD, Circuit Judges.
PER CURIAM:
        This appeal concerns a $100 assessment.
        In 2001, Jose Carlos Pineda pled guilty to illegal reentry after deportation
and was sentenced to seventy months of imprisonment and three years of
supervised release. Pursuant to 18 U.S.C. § 3013, he was also ordered to pay a
$100 special assessment, the proceeds of which would be deposited in the Crime
Victims Fund. After serving his sentence of imprisonment, Pineda was deported
to Mexico in 2005. He did not pay the assessment.
        In 2008, seven years after the 2001 judgment, Pineda was found illegally
present in this country again, in violation of federal law and his supervised
release terms. Pineda’s supervised release was revoked, and in a written order,
the district court reimposed the unpaid special assessment.
  Case: 08-41301    Document: 00511010538    Page: 2   Date Filed: 01/22/2010

                                No. 08-41301

      On appeal, Pineda argues that this act was ultra vires. The government
agrees that the district court exceeded its authority, regardless whether it
sought to reinstate the previous unpaid assessment or to impose a new
assessment. Section 3013(c) states that “The obligation to pay an assessment
ceases five years after the date of the judgment.” Neither § 3013 nor 18 U.S.C.
§ 3583, which concerns supervised release, sanctions the imposition of a § 3013
assessment for revocation of a term of supervised release. The district court
therefore lacked authority to impose or reimpose a special assessment.
      Accordingly, we VACATE in part and REMAND for amendment of the
judgment consistent with this opinion.




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