Dist. Ct. Effectively Sentenced Defendant for Uncharged Illegal Reentry When Revoking Supervised Release; COA Holds No Plain Error

United States v. Hernandez-Martinez, No. 06-40271 (5th Cir. Apr. 18, 2007) (Jones, Jolly, Stewart)

Hernandez, a Mexican citizen, was on (presumably non-reporting) supervised release for a drug offense. About a year-and-a-half after his deportation, he illegally reentered the United States and found work at a mattress factory in Chicago. He was later arrested for shoplifting and released on bond. While on bond he was detained during a traffic stop, and the U.S. Probation Office was notified. Hernandez was not prosecuted for theft or illegal reentry in Illinois. Instead, the Government sent him to Texas for revocation proceedings.

Here's what happened next:

At the revocation hearing, Hernandez appeared before the same judge who had granted him a significant downward departure in his cocaine possession sentence, and he pleaded true to the three violations. The court expressed displeasure that Hernandez had blatantly disregarded the provisions surrounding his supervised release and that the prior sentence had not deterred his criminal activity. The court also expressed frustration with the failure of the U.S. Attorney’s office in Chicago to prosecute Hernandez, and others similarly situated, for illegal reentry into the United States, instead sending them to the Southern District of Texas for revocation proceedings. After discussing with counsel Hernandez’s violations, the prior downward departure, and the lack of an illegal reentry prosecution, the court inquired what the Guidelines sentence for illegal reentry would have been. The Probation Officer advised the court that Hernandez would have faced forty-six to fifty-seven months imprisonment had he been prosecuted in Illinois for illegal reentry. Concluding that the revocation Guideline of four to ten months did not adequately address this type of violation and that the prior sentence had served as an insufficient deterrent, the court sentenced Hernandez to forty-six months —significantly above the Guidelines range but well below the statutory maximum of five years for revocation.

(emphasis added). Hernandez appealed, naturally arguing "that he was impermissibly sentenced for his uncharged illegal reentry rather than for his underlying drug offense, and that his sentence is thus unreasonable, plainly unreasonable, and an abuse of discretion."

The court disagreed. It first held that Hernandez failed to preserve any claim of error, thus subjecting him to plain error review. The court held that Hernandez's request for a sentence at the low end of the advisory guideline revocation range was insufficient to preserve the specific legal errors he raised for the first time on appeal because it left the district court without the opportunity to clarify whether it was basing the sentence on its disagreement with the Government's exercise of prosecutorial discretion or on Hernandez's failure to abide by the law while on supervised release.

The court then discussed whether a revocation sentence is subject to Booker's reasonableness standard of review, or the pre-Booker "plainly unreasonable" standard. But it didn't decide that issue one way or the other (although the panel suggests strongly that its the latter), because it held that Hernandez could not show plain error under either standard:

Although the district court expressed displeasure at the Government’s failure to charge Hernandez with illegal reentry, it is not evident that it based his sentence on that ground; it is equally or more plausible that the court based his sentence on the fact that it gave Hernandez a significant downward departure in his original sentence. Thus, if there was any error, it is not plain. Because Hernandez did not object at sentencing and give the court an opportunity to clarify itself, we are unable to conclude that the court based his sentence on an impermissible factor. Moreover, that the forty-six month sentence is significantly below the statutory five-year maximum on revocation strongly counsels against its being held reversible on plain error review.

That's a troubling conclusion. Putting aside the question of whether any error was plain, it sure looks like the district judge was punishing Hernandez for the uncharged illegal reentry, and that the district court's decision to do so stemmed from its disagreement with the Government's exercise of prosecutorial discretion. That raises significant due process and separation of powers concerns (not to mention the likely venue problem given the fact that Hernandez was found in Illinois). And is a 46-month sentence really "significantly below" a 60-month statutory maximum? That would be a minor complaint, but for the fact that the court concludes that the extent of the deviation from the maximum "strongly counsels" against there being plain error.

But beyond that, the court's view of what is happening in a supervised release revocation appears to be at odds with that of the Supreme Court. In the course of discussing the reasonable-vs.-plainly-unreasonable issue, the court cites with approval a Fourth Circuit case that relies on a Chapter 7 policy statement for the proposition that "[t]he goal of a revocation sentence is to punish the defendant for the violation of supervised release, not the underlying offense." That line is a little ambiguous, but it sounds contrary to the Supreme Court's characterization of what happens in a supervised release revocation:

[One view considers a revocation of supervised release to be a punishment for the violation of the terms of release.] While this understanding of revocation of supervised release has some intuitive appeal, the Government disavows it, and wisely so in view of the serious constitutional questions that would be raised by construing revocation and reimprisonment as punishment for the violation of the conditions of supervised release. Although such violations often lead to reimprisonment, the violative conduct need not be criminal and need only be found by a judge under a preponderance of the evidence standard, not by a jury beyond a reasonable doubt. Where the acts of violation are criminal in their own right, they may be the basis for separate prsosecution, which would raise an issue of double jeopardy if the revocation of the supervised release were also punishment for the same offense. Treating postrevocation sanctions as part of the penalty for the intial offense, however (as most courts have done), avoids these difficulties.

Johnson v. United States, 529 U.S. 694, 700 (2000) (emphasis added, citations omitted). That view of revocation would weigh in favor of finding error, if not plain error, in this case.

So can a district court base a revocation sentence on its disagreement with the Government's charging practices, and effectively convict a releasee of a crime with which he's never been charged in a proceeding that lacks many of the critical substantive and procedural protections afforded defendants in criminal trials? I think not, but one thing's for sure: you don't want to have to argue that it's plain error.