United States v. Martinez ( 1994 )

USCA1 Opinion

          July 13, 1994         [NOT FOR PUBLICATION]

                            UNITED STATES COURT OF APPEALS
                                FOR THE FIRST CIRCUIT

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          No. 94-1062

            


                                    UNITED STATES,

                                      Appellee,

                                          v.

                                    JOSE MARTINEZ,

                                Defendant, Appellant.


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                     APPEAL FROM THE UNITED STATES DISTRICT COURT

                          FOR THE DISTRICT OF MASSACHUSETTS

                     [Hon. Robert E. Keeton, U.S. District Judge]
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                                        Before

                                Selya, Cyr and Boudin,
                                   Circuit Judges.
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               Charles P. McGinty on brief for appellant.
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               Donald  K.  Stern,  United  States Attorney,  and  James  D.
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          Herbert, Assistant United States  Attorney, on Motion for Summary
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          Disposition for appellee.



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                      Per Curiam.   The government has  moved for summary
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            affirmance of the district court's order revoking defendant's

            supervised release.  

                      Defendant  pleaded guilty to a charge of possession

            with intent to distribute cocaine,  in violation of 21 U.S.C.

               841(a)(1).   He was  initially sentenced  to 57  months in

            custody followed by three years of supervised release.   H e

            conceded at the revocation hearing  that he had violated  the

            conditions  of his  supervised release.   The  district court

            resentenced  him to  15 months  imprisonment, followed  by 21

            months of supervised release.  

                     On appeal  defendant raises a single issue, "whether

            the supervised  release revocation  ["SRR"] provisions  of 18

            U.S.C.   3583(e)(3), permit a district court, upon revocation

            of  a  term  of  supervised  release,  to  impose a  sentence

            combining incarceration  with  a further  term of  supervised

            release." 

                      This court recently  considered the identical issue

            in United States v. O'Neil, 11 F.3d 292 (1st Cir.  1993).  We
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            held in O'Neil,  
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                 [T]he SRR provision . . . permits a district court,
                 upon revocation of a term of supervised release, to
                 impose  a  prison sentence  combining incarceration
                 with a further term  of supervised release, so long
                 as  (1) the incarcerative  portion of  the sentence
                 does not exceed the time limit specified in the SRR
                 provision itself,  and (2) the  combined length  of
                 the new  prison sentence cum supervision  term does
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                 not  exceed the  duration of  the original  term of
                 supervised release.


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            O'Neil, 11 F.3d at 302.
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                      Defendant  concedes that the  sentence imposed upon

            him comports  with O'Neil.   He argues, however,  that O'Neil
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            was wrongly decided.  

                      We  decline  defendant's   invitation  to   revisit

            O'Neil, especially as all  of defendant's arguments, and most
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            of the authorities he cites, were aired and considered by the

            panel that heard O'Neil.   In this circuit, newly-constituted
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            panels are generally bound by prior panel decisions on point.

            Broderick v. Roache, 996 F.2d 1294, 1298 (1st Cir. 1993).   
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                      Defendant's reliance on the Supreme  Court's recent

            decision  in United  States v.  Granderson, 114  S. Ct.  1259
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            (1994),  is  misplaced.    Granderson  and  O'Neil  addressed
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            different  substantive  and  interpretive   issues  involving

            discrete  statutory sections  with different  texts, designs,

            and histories.  The  differences which defendant perceives in

            the two opinions, including their differing uses of the "rule

            of lenity," are a function of the lack of common issues,  not

            of differences in analytic method or statutory construction. 

                      As  the  dispositive  issue   on  appeal  has  been

            recently  and  authoritatively decided  by  a  panel of  this

            court, and  no other  substantial question is  presented, the

            decision below is summarily affirmed.  See Loc. R. 27.1.
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