|Hon. Judge Susan P. Graber|
The Sixth Amendment and Supervised Release: never the twain
United States v. Gavilanes-Ocaranza,
772 F.3d 624 (9th Cir. Nov. 25, 2014), decision available here.
Decision by Judge Graber, joined by Judge Hawkins and District Judge Sedwick
Facts: Gavilanes-Ocaranza pled guilty to attempted illegal
reentry and received a three-year supervised release term after his term of
imprisonment. Id. at *626. He was
removed, reentered, detected, and convicted of reentry again; he received a 46-month
custody term from another court. Id.
at 626. Gavilanes-Ocaranza was then brought back before the original district
court to face allegations that he had violated his original supervised release conditions.
Id. at 627. He admitted the
allegations, was revoked, and received a twelve-month custodial term for the S/R
violation, consecutive to his 46 month sentence for the second illegal reentry.
Id. None of the issues in the appeal
were raised in the district court (hence plain error review review).
Issue(s): “We have held that the supervised release system
under 18 U.S.C. § 3583, including revocation of that release and imposition of
additional prison time as a result of a violation of a term of the release,
does not violate a defendant’s right to trial by jury. Huerta-Pimental, 445 F.3d at 1224. Defendant contends that Alleyne v. United States … 133 S.Ct.
2151 (2013), effectively overruled Huerta-Pimental.”
Id. at 628.
disagree . . . we hold that, after Allyene,
Huerta-Pimental remains good law. We
reaffirm that the revocation of supervised release and the imposition of
additional prison time pursuant to 18 U.S.C. § 3583 do not violate a defendant’s
right to trial by jury.” Id at
Of Note: Supervised release defense is hammered, in this brief
opinion. In addition to shooting down the Apprendi
pitch, the Court also takes on a Sixth Amendment Speedy Trial challenge. In this case,
Gavilanes-Ocaranza was actually promptly brought before the original district
court for the revocation proceedings. Id.
at 628. He creatively argued, however, that the revocation was an extension of the original criminal
prosecution years before – and thus the revocation hearing violated his right
to a speedy trial. Id.
The Ninth wipes
out this narrow argument in a broad holding: “To the extent that our precedent
is ambiguous on that point, we eliminate that ambiguity by holding now that
there is no Sixth Amendment right to a speedy ‘trial’ in supervised release
revocation proceedings and that a revocation proceeding is neither its own
criminal prosecution nor an extension of the original criminal prosecution that
led to the imposition of supervised release.” Id.
How to Use:
is about the Sixth Amendment and its (non-application) to supervised release. While
the decision’s Speedy Trial holding isn’t terribly surprising, the general problem
of delayed revocation proceedings remains real. AUSAs and Probation Officers make
no effort to bring clients over from state custody to face federal S/R charges –
they know that the delay will hamstring the district court imposing a
supervised release term, and will increase the odds of consecutive violation
explains, there’s no Sixth Amendment right to a speedy trial on violation
charges, but Judge Graber acknowledges that there is a Fifth Amendment due
process right to a “reasonably prompt hearing.” Id. at 628 (citing United
States v. Santana, 526 F.3d 1257, 1259 (9th Cir. 2008)). When trying to get
your client back before a DJ for violation proceedings, think Fifth, not Sixth,
as the hook.
Reading: We’re used to the shoddy evidence
procedures with local cops, but the Feds have their act together, right?
An internal inquiry has revealed that the FBI has mishandled and lost
evidence, with errors discovered “in nearly half of the pieces of evidence it
reviewed.” See F.B.I. Evidence is Often
Mishandled, an Internal Inquiry Finds, NYT available here.
Labels: 18 USC 3583 (Supervised Release), Alleyne, Apprendi, Graber, Sixth Amendment, Speedy Trial, Supervised Release