FILED
AUG 15 2012
NOT FOR PUBLICATION
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 11-10409
Plaintiff-Appellee, D.C. No. 2:10-cr-01716-ROS-1
v. MEMORANDUM*
IAN JUAN CIPRIANO,
Defendant-Appellant.
Appeal from United States District Court
for the District of Arizona
Roslyn O. Silver, Chief District Judge, Presiding
Submitted August 10, 2012**
San Francisco, California
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously finds this case suitable for decision without
oral argument. Fed. R. App. P. 34(a)(2).
Before: CALLAHAN and WATFORD, Circuit Judges, and SINGLETON,***
Senior District Judge
Ian Juan Cipriano (“Cipriano”) appeals his sentence of fourteen months’
imprisonment following his guilty plea to escape from custody in violation of 18
U.S.C. §§ 751(a) and 4082(a).1 We have jurisdiction to hear this appeal under 28
U.S.C. § 1291. See also United States v. Sadler, 480 F.3d 932, 941-42 (9th Cir.
2007) (holding that Federal Rule of Appellate Procedure 4(b)’s timeliness
requirements are nonjurisdictional). None of Cipriano’s arguments on appeal were
raised before the district court. We therefore review his claims for plain error.
United States v. Cannel, 517 F.3d 1172, 1176 (9th Cir. 2008).
On appeal, Cipriano contends that his Sixth Amendment rights were violated
when the district court sentenced him for escape from custody without submitting
to a jury the question of whether the custody from which he escaped was “by virtue
of” his original kidnapping conviction or “by virtue of” his supervised release
violation. Specifically, Cipriano argues that the district court’s determination that
he was confined “by virtue of” his kidnapping conviction was a fact that increased
the penalty for his escape conviction beyond the prescribed maximum. He
***
The Honorable James K. Singleton, Jr., Senior United States District
Judge for the District of Alaska, sitting by designation.
1
The parties are familiar with the facts, and we repeat them here only
as necessary to explain our decision.
2
therefore claims that this question had to be submitted to a jury and proved beyond
a reasonable doubt under Apprendi v. New Jersey, 530 U.S. 466, 490 (2000).
Cipriano’s argument is foreclosed by our decision in United States v.
Patterson, 230 F.3d 1168 (9th Cir. 2000). In Patterson, we considered the
Sentencing Guidelines’ provision that corresponds to 18 U.S.C. § 751(a) and held
that “when supervised release is imposed as part of a sentence and then revoked in
subsequent proceedings, the resulting confinement is ‘by virtue of’ the original
conviction.” Patterson, 230 F.3d at 1169. In light of this closely analogous
precedent, the district court did not plainly err in sentencing Cipriano.
Cipriano also argues that his current escape conviction should be reversed
because the custody from which he escaped exceeded the limits established by
federal law and by the plea agreement in his kidnapping case. First, he argues that
the plea agreement gave him an absolute “right to release” on April 10, 2010,
notwithstanding any violation of the conditions of his supervised release. The plea
agreement is to the contrary. By signing it, Cipriano agreed that, “if I violate any
of the conditions of my probation/supervised release, my probabtion/supervised
release may be revoked and upon such revocation, notwithstanding any other
provision of this agreement, I may be required to serve a term of imprisonment or
my sentence may be otherwise altered.”
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Second, Cipriano argues that, when the district court revoked his supervised
release and imposed an additional term of supervision, federal law entitled him to
credit for time already served on supervised release. This is not the law. “[I]f a
defendant repeatedly violates the conditions of supervised release, the court may
repeatedly impose new terms of supervised release without credit for time served
on supervised release.” United States v. Cade, 236 F.3d 463, 467 (9th Cir. 2000)
(citing 18 U.S.C. § 3583(e)(3), (h)). Accordingly, there was no plain error.
AFFIRMED.
4