United States v. Bermudez-Plaza

United States Court of Appeals
For the First Circuit
____________________

No. 99-2078

UNITED STATES,
Appellee,

v.

MANUEL BERMUDEZ-PLAZA,
Defendant, Appellant.

____________________

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF PUERTO RICO

[Hon. Gilberto Gierbolini-Ortiz, Senior U.S. District Judge]
[Hon. Justo Arenas, U.S. Magistrate Judge]

____________________

Before

Torruella, Chief Judge,

Lipez, Circuit Judge,

and Keeton,* District Judge.

_____________________

Edgardo Rodríguez-Quilichini, Assistant Federal Public Defender,
Appellate Section, and Joseph C. Laws, Jr., Federal Public Defender, on
brief for appellant.
Camille Vélez-Rivé, Assistant United States Attorney, Jorge E.
Vega-Pacheco, Assistant United States Attorney, Chief, Criminal
Division, and Guillermo Gil, United States Attorney, on brief for
appellee.

* Of the District of Massachusetts, sitting by designation.
____________________

August 2, 2000
____________________

-2-
 TORRUELLA, Chief Judge. When appellant Manuel Bermúdez-Plaza

violated the conditions of his supervised release, the court revoked

his original term of supervised release and sentenced him to nine

months' imprisonment to be followed by another year of supervised

release. Appellant claims on appeal that this sentence violated the Ex

Post Facto Clause of the United States Constitution and was the result

of an unlawful petition by his probation officer. Neither argument has

merit, and we affirm the district court's judgment and sentence.

I. Background

Appellant pled guilty in 1992 to possession with intent to

distribute cocaine. He was sentenced in March 1993 to sixty months'

imprisonment, to be followed by four years of supervised release.

Appellant completed his term of imprisonment and began serving his term

of supervised release in 1997.

On June 11, 1999, a United States Probation Officer filed

a document entitled "Motion Notifying Violations of Supervised Release

Conditions and Request for the Issuance of an Arrest Warrant" informing

the court that appellant had tested positive for illegal drug use

(cocaine) on several occasions in May of that year. A Supplement filed

June 17, 1999 notified the court of further positive results for

cocaine use.

On June 22, 1999, the district court ordered appellant to

show cause why his supervised release should not be revoked, and an

-3-
arrest warrant issued. A hearing was held on August 10, 1999, and

judgment was entered on August 16, 1999 revoking appellant's existing

term of supervised release and sentencing him to nine months'

imprisonment to be followed by one year of supervised release.

Appellant timely filed a notice of appeal. He now claims (1)

that the imposition of a prison term and a new term of supervised

release violated the Ex Post Facto Clause because the law at the time

of his original offense permitted the imposition of imprisonment or

supervised release, but not both; and (2) that the "motion" filed by

the probation officer was unlawful because it exceeded the officer's

statutory authority, violated the separation of powers, and constituted

the unlicensed practice of law.

II. Law and Application

A. Ex Post Facto Claim

Appellant argues that the imposition of both a term of

imprisonment and a term of supervised release violated the Ex Post

Facto Clause because the law existing at the time of his original

offense allowed only the imposition of one or the other form of

punishment, not both. However, particularly in light of recent Supreme

Court precedent, this argument must fail.

Appellant's claim is disposed of by the United States Supreme

Court's recent decision in the factually indistinguishable case of

Johnson v. United States, 120 S. Ct. 1795 (2000). In Johnson, the

-4-
Supreme Court held that the current provision governing the imposition

of supervised release following a revocation, 18 U.S.C. § 3583(h), does

not apply retroactively to the revocation of supervised release for an

individual whose original offense occurred before § 3583(h)'s effective

date of September 13, 1994. See id. at 1802. Consequently, the Court

rejected the petitioner's ex post facto argument and determined that

the validity of the petitioner's sentence depended solely on whether

the imposition of supervised release following reimprisonment was

authorized by 18 U.S.C. § 3583(e), the statutory provision in effect at

the time of petitioner's original offense. See id. The Court

concluded, as we had previously in United States v. O'Neil, 11 F.3d 292

(1st Cir. 1993), that § 3583(e) permits a sentencing court, upon

revocation of an individual's supervised release, to impose both a term

of imprisonment and a term of supervised release. See Johnson, 120 S.

Ct. at 1807. Petitioner's sentence was therefore upheld.

The case currently before us is indistinguishable from

Johnson. Appellant's original offense occurred in 1992, and revocation

of his supervised release is therefore governed by 18 U.S.C. § 3583(e).

Because § 3583(e) permits a sentencing court, upon the revocation of

supervised release, to impose a sentence of imprisonment followed by a

term of supervised release, the district court's sentence in this case

was proper and is affirmed.

B. Claim of Unlawful Action by Probation Officer

-5-
 Appellant's second claim is that the probation officer's

motion which precipitated the revocation of his supervised release was

unlawfully filed. He argues that the probation officer exceeded her

statutory authority, violated the separation of powers, and engaged in

the unlicensed practice of law. Each of these contentions has been

considered and rejected by other courts of appeals, and we largely

adopt their reasoning.

1. Statutory Authority

Probation officers are authorized and required by law to,

inter alia, keep informed as to the conduct and condition of a person

on supervised release and to report such conduct and condition,

including any violations of the conditions of release, to the

sentencing court. See 18 U.S.C. § 3603(2), (8)(B). Appellant claims

that, by going one step further and recommending a course of action to

the district court, the probation officer exceeded her authority under

18 U.S.C. § 3603. We disagree.

As the United States Courts of Appeals for both the Ninth and

Tenth Circuits have recognized, a motion such as that filed by the

probation officer in this case is merely an exercise of the officer's

statutory duty to "report" to the district court on the conduct and

conditions of a person on supervised release. See United States v.

Mejía-Sánchez, 172 F.3d 1172, 1174-75 (9th Cir. 1999); United States v.

Davis, 151 F.3d 1304, 1307 (10th Cir. 1998). When a probation officer

-6-
includes in her report a recommended course of action, she is merely

assisting the district court in its evaluation of the alleged

violation, as is required of her as an investigatory and supervisory

agent of the Judiciary. See Mejía-Sánchez, 172 F.3d at 1175 (citing

United States v. Burnette, 980 F. Supp. 1429, 1433 (M.D. Ala. 1997)).

In light of the valuable assistance rendered by probation officers to

district courts, we decline to read § 3603 so narrowly as to prohibit

a probation officer from providing the court with the benefit of her

professional experience, both in general and with regard to the

particular individual at issue, in the form of a suggested course of

action.

2. Separation of Powers

Appellant's next argument -- that the motion violated the

separation of powers because only the Attorney General may initiate

revocation proceedings -- also fails. As the Ninth and Tenth Circuits

have noted, revocation hearings are not criminal proceedings and

neither the Attorney General nor any other officer is solely

responsible for their initiation. See id.; Davis, 151 F.3d at 1307.

To the contrary, the sentencing court may initiate revocation

proceedings sua sponte whenever it learns of a possible violation of an

individual's conditions of release. See Mejía-Sánchez, 172 F.3d at

1175; Davis, 151 F.3d at 1307. Moreover, it is the court and the court

alone that ultimately decides whether or not revocation proceedings

-7-
shall be initiated and, if initiated, what consequences will befall the

individual who has violated his conditions of release. See Mejía-

Sánchez, 172 F.3d at 1175; Davis, 151 F.3d at 1307. In reporting

suspected violations, and even in recommending a particular course of

action, the probation officer is simply performing her statutory duty

to assist the court in its supervision of individuals on supervised

release, which supervision is an integral part of the courts'

quintessentially judicial sentencing responsibility. See Mejía-

Sánchez, 172 F.3d at 1175 (citing Davis, 151 F.3d at 1308).

We hold that the motion filed in this case was fully

consistent with the probation officer's statutorily mandated role as an

assistant to the district court and, as such, did not offend the

separation of powers.

3. Unlicensed Practice of Law

Finally, we follow the Tenth Circuit in rejecting the

argument that, by filing a "motion" recommending a course of action,

the probation officer engaged in the unlicensed practice of law. See

Davis, 151 F.3d at 1308. The probation officer here was engaged not in

the practice of law, but rather in the performance of her statutory

duty to monitor the conduct and condition of an individual on

supervised release and to report such conduct and condition, including

any violations of the conditions of release, to the sentencing court.

-8-
See 18 U.S.C. § 3603(2), (8)(B). She was acting as an agent of the

Judiciary itself, not as a practicing attorney.

III. Conclusion

For the reasons set forth above, we conclude (1) that the

imposition of both a term of imprisonment and a further term of

supervised release following revocation of appellant's supervised

release did not violate the Ex Post Facto Clause and was permitted by

the applicable statute, 18 U.S.C. § 3583(e); and (2) that the motion

filed by the probation officer was lawful and proper. We therefore

affirm the judgment and sentence entered by the district court.

Affirmed.

-9-