United States v. Martinez-Pomales , 625 F. App'x 10 ( 2015 )

Not for Publication in West's Federal Reporter
United States Court of Appeals
For the First Circuit
No. 14-1046
UNITED STATES OF AMERICA,
Appellee,
v.
ANTONIO R. MARTÍNEZ-POMALES,
a/k/a Sealed Defendant 1, a/k/a Benji,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Carmen Consuelo Cerezo, U.S. District Judge]
Before
Lynch, Thompson, and Kayatta,
Circuit Judges.
Robert Millán on brief for appellant.
Rosa Emilia Rodríguez-Vélez, United States Attorney, Nelson
Pérez-Sosa, Assistant United States Attorney, Chief, Appellate
Division, and Juan Carlos Reyes-Ramos, Assistant United States
Attorney, on brief for appellee.
August 21, 2015
THOMPSON, Circuit Judge. A district court sentenced
Antonio Martínez-Pomales to 10 years in prison and 5 years of
supervised release for conspiring to distribute at least 5
kilograms of cocaine. See 21 U.S.C. §§ 841(a)(1), 846. He got
somewhat lucky on the supervised-release front, because a statute
authorizes a minimum supervised-release term of "at least 5 years,"
see id. § 841(b)(1)(A), and permits a maximum term of life, see
United States v. Cortes-Claudio, 312 F.3d 17, 22-23 (1st Cir.
2002). Martínez-Pomales later admitted violating conditions of
his supervised release by (among other things) committing crimes
of violence. So the court revoked his supervised release,
sentenced him to 24 months in prison, and imposed a new 5-year
supervised-release term too.
Martínez-Pomales contests here only the supervised-
release part of his new sentence, insisting that the court plainly
erred by not reducing the 5-year figure to 3.1
1 Plain-error review is compelled, he writes, because he failed to
object to the sentence below. For any legal novice reading this
opinion, plain error is an error so clear-cut that a district judge
should be able to avoid it even without an objection from a party.
See United States v. Correa-Osorio, 784 F.3d 11, 18 (1st Cir.
2015). More particularly — and in legalese — plain error is
"(1) an error, (2) that is clear or obvious, (3) which affects
[the non-objecting party's] substantial rights (i.e., the error
made him worse off), and which (4) seriously impugns the fairness,
integrity, or public reputation of the proceeding." Id. at 17-
18.
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In so doing, he argues (at least implicitly) in this
multi-step way:
Step one: A federal statute, he points out, says that
after revoking a person's supervised release, a district court can
impose a prison term followed by more supervised release — though
the statute adds that the amount of supervised release is limited
to "the term of supervised release authorized by statute for the
offense that resulted in the original term of supervised release,
less any term of imprisonment that was imposed upon revocation of
supervised release." See 18 U.S.C. § 3583(h).
Step two: His original drug offense was a Class A
felony, he concedes. See 18 U.S.C. § 3559; id. § 3581(b). And,
his argument continues, a supervised-release term for a Class A
felony may not exceed 5 years. Tellingly, he cites no statute to
back up his claim, opting instead to rely on section 7B1.1 of the
federal sentencing guidelines — but this section grades
supervised-release infractions, not crimes that led to the
original term of supervised release, and so is not relevant for
present purposes. See United States v. Tapia-Escalera, 356 F.3d
181, 185 (1st Cir. 2004) (discussing section 7B1.1's purpose).
Still, what Martínez-Pomales says is an echo of 18 U.S.C.
§ 3583(b)(1), which — with a key proviso ("[e]xcept as otherwise
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provided") — sets a maximum of 5 years' supervised release for a
Class A felony.
Step three: Believing that 5 years of supervised release
was the statutory limit for his original drug crime — and noting
that the court gave him 2 years in prison following the revocation
of his first supervised release — he protests that any further
supervised release could not exceed 3 years after doing the math
required by section 3583(h) (discussed in step one): 5 - 2 = 3.
Ergo, the district court plainly blundered by giving him 5 years
— or so he tries to persuade us.
We can make short work of this argument, however, because
a key premise of Martínez-Pomales's thesis is simply wrong:
contrary to what he thinks, the maximum term of supervised release
for his drug-conspiracy crime is not 5 years — it is life. Here
is why. Although section 3583(b)(1) caps supervised release for
Class A felonies at 5 years, there is an exception if another law
"otherwise provide[s]." And 21 U.S.C. § 841(b)(1)(A) is just such
a law, mandating a minimum term of supervised release "of at least
5 years" for certain drug crimes, including the one for which
Martínez-Pomales was originally sentenced. See Cortes-Claudio,
312 F.3d at 21 (explaining that "[b]ecause § 841 does 'otherwise
provide' supervised release terms, its provisions" trump section
3583(b)'s). Also, the "at least 5 years" language means, we have
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held, that a defendant committing the qualifying crime can face a
life sentence of supervised release. See id. at 22-23; see also
United States v. Matos, 328 F.3d 34, 44 (1st Cir. 2003). Given,
then, that the maximum supervised-release term for Martínez-
Pomales's initial drug crime was life, not 5 years, we cannot say
that the district court plainly erred by hitting him with 5 years'
supervised release on top of 2 years' reimprisonment, see, e.g.,
United States v. Neal, 556 F. App'x 495, 497 (7th Cir. 2014) (per
curiam) (rejecting an argument similar to Martínez-Pomales's);
United States v. Black, 455 F. App'x 412, 412-13 (5th Cir. 2011)
(per curiam) (ditto) — even assuming, as he argues, that section
3583(h)'s subtraction principle is in play here.2
Affirmed.
2 Some circuits hold that if a defendant violates his supervised
release, a district court can impose a lifetime supervised-release
term without deducting any jail time imposed for that same
infraction. See United States v. Cassesse, 685 F.3d 186, 190-91
(2d Cir. 2012) (explaining why "it is highly unlikely" that
Congress thought that section 3583(h)'s "subtraction concept . . .
applied to a lifetime term of supervised release" — for one, a
court "could easily circumvent such a requirement by selecting a
supervised release term of many years, 99 for example, and then
imposing 'only' 98 years" — and so an "unadjusted lifetime term of
supervised release" is not "unlawful"); United States v. Rausch,
638 F.3d 1296, 1303 (10th Cir. 2011) (stressing that "[b]ecause it
is impossible to predict the precise length of any individual's
life, a [supervised release] sentence of 'life less two years [in
prison]' has only conceptual — not practical — meaning"). We need
not explore that topic today; it is enough to say — as we just did
— that the 5-year supervised-release term imposed on Martínez-
Pomales does not come anywhere close to plain error.
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