United States v. Trevizo-Robles , 86 F. App'x 374 ( 2004 )


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  •                                                                         F I L E D
    United States Court of Appeals
    Tenth Circuit
    UNITED STATES COURT OF APPEALS
    JAN 9 2004
    TENTH CIRCUIT
    PATRICK FISHER
    Clerk
    UNITED STATES OF AMERICA,
    Plaintiff-Appellee,
    v.                                                     No. 02-2260
    (New Mexico)
    ADALBERTO TREVIZO-ROBLES,                      (D.Ct. No. CR-02-45 MCA)
    Defendant-Appellant.
    ORDER AND JUDGMENT *
    Before SEYMOUR, MURPHY, and O’BRIEN, Circuit Judges.
    After examining the briefs and appellate record, this panel has determined
    unanimously that oral argument would not materially assist the determination of
    this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is
    therefore ordered submitted without oral argument.
    *
    This order and judgment is not binding precedent except under the
    doctrines of law of the case, res judicata and collateral estoppel. The court
    generally disfavors the citation of orders and judgments; nevertheless, an order
    and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
    Defendant Aldaberto Trevizo-Robles pled guilty to one count of
    distribution of methamphetamine for which he was sentenced to eighty-seven
    months incarceration followed by five years supervised release. Trevizo-Robles
    appeals the five years supervision portion of the sentence. We exercise
    jurisdiction under 
    28 U.S.C. § 1291
     to consider whether we may review this
    sentence. Because we lack jurisdiction for sentence review, we dismiss the
    appeal.
    On April 23, 2002, Trevizo-Robles pled guilty to one count of Distribution
    of More than 500 Grams of a Mixture Containing Methamphetamine in violation
    of 
    21 U.S.C. §§ 841
    (a)(1) and (b)(1)(A). The minimum penalty for this offense is
    no less than ten years imprisonment followed by no less than five years
    supervised release. 
    Id.
     Prior to sentencing, the United States Probation Office
    prepared a presentence report and addendum to the report. The addendum
    recommended Trevizo-Robles be sentenced pursuant to 
    18 U.S.C. § 3553
    (f),
    referred to as the “safety-valve” provision for a drug offender with a minimal
    criminal history. This provision directs a district court to “impose a sentence
    pursuant to [United States Sentencing Guidelines] . . . under section 994 of Title
    28 without regard to any statutory minimum . . . .” 
    Id.
     Thus, as it relates to post-
    incarceration supervision, the district court would not be required to impose the
    statutory minimum of five years of supervised release. 
    21 U.S.C. § 841
    (b)(1)(A).
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    Instead, the appropriate sentence under the safety-valve provision would be no
    less than three, and no more than five, years supervision. USSG § 5D1.2(a)(1).
    At the sentencing hearing, the district court applied the safety-valve
    provision and suggested eighty-seven months imprisonment followed by three
    years supervised release was an appropriate sentence. When asked if he agreed,
    the prosecutor responded, “[t]he only thing I would suggest to the Court is I
    believe the term of supervised release should be five years, Your Honor. It’s an
    A number. It’s ten to life.” The district judge replied, “All right. Let me – give
    me one second here. The term of the supervised release will be five years.” The
    district court finalized the sentence as amended without objection.
    The Government contends we lack jurisdiction to review the district court
    judge’s sentencing decision. We have an independent duty to examine our own
    jurisdiction prior to consideration of the merits. Lopez v. Behles, 
    14 F.3d 1497
    ,
    1499 (10th Cir.), cert. denied, 
    513 U.S. 818
    , reh’g denied, 
    513 U.S. 1033
     (1994);
    United States v. Rubio, 
    231 F.3d 709
    , 711 (10th Cir. 2000). The jurisdiction for
    review of a criminal sentence is governed by 
    18 U.S.C. § 3742
    . Under that
    section, “a sentence within the Guidelines may not be appealed unless imposed in
    violation of law, or as a result of an incorrect application of the Guidelines.”
    United States v. Garcia, 
    919 F.2d 1478
    , 1479 (10th Cir. 1990). 1 “Absent ‘facial
    1
    
    18 U.S.C. § 3742
    (a)(1)-(4) permits a defendant to appeal his sentence only
    “if the sentence: (1) was imposed in violation of law; (2) was imposed as a result
    -3-
    illegality, improper calculations, or clearly erroneous findings,’ we may not
    review the district court's decision to impose a sentence at a particular point
    within the proper sentencing range.” United States v. Neary, 
    183 F.3d 1196
    , 1198
    (10th Cir. 1999) (citation and quotation omitted). See United States v. Big
    Medicine, 
    73 F.3d 994
    , 998 (10th Cir. 1995).
    If the district court's sentencing decision rested on a mistaken belief that it
    lacked legal power to exercise sentencing discretion, the sentence is imposed in
    violation of the law. United States v. Ruiz, 
    536 U.S. 622
    , 627 (2002). Trevizo-
    Robles alleges the district court judge’s “sudden and unexplained switch” from
    three to five years supervision was such a mistake. (Appellant Br. at 8). His
    allegation is based on two theories.
    First, he asserts the district judge must have misunderstood the prosecutor’s
    comment about supervised release and assumed five years was the legal minimum.
    He bolsters his assertion by noting the district judge’s initial comments regarding
    the minimal incarceration period and the minimal supervised release period.
    Trevizo-Robles then surmises that had the prosecutor truly been making a
    suggestion to the district court judge, he would have recommended an increased
    of an incorrect application of the sentencing guidelines; or (3) is greater than the
    sentence specified in the applicable guideline range . . . ; or (4) was imposed for
    an offense for which there is no sentencing guideline and is plainly
    unreasonable.”
    -4-
    sentence as well as an increased supervised release period. He credits the
    prosecutor too much, and the district court judge too little.
    In his second attempt to show mistake, Trevizo-Robles points to an error in
    the presentence report. The report incorrectly stated the appropriate range for
    supervised release as three years to life, rather than three years to five years. He
    argues the judge intended to impose a minimum sentence in this case, and
    probably was misled by this error into believing the five year term was
    comparably low in the permissible range of sentences. He offers nothing to
    support this convenient supposition.
    Speculation will not remove the jurisdictional bar to Trevizo-Robles’
    claims. He fails to identify any evidence in the record indicating that the district
    judge was misled by the error in the presentence report. The prosecutor’s
    statements that the crime was “an A felony” and the initial incarceration term was
    “ten to life” are true statements. The range for supervised release under the
    safety-valve provision is three to five years. The district judge explicitly noted
    the correct minimum in her initial suggestion and later imposed a permissible
    term within the Guideline range.
    Indeed, there is no evidence in the record that the district judge deviated
    from the proper exercise of her discretion in any way. Even were there some
    ambiguity in the record, “we presume the court was aware of its authority.” United
    -5-
    States v. Nelson, 
    54 F.3d 1540
    , 1544 (10th Cir. 1995). Absent specific evidence to
    the contrary, we presume the district court knows the requirements of the laws it
    applies. United States v. Heredia-Cruz, 
    328 F.3d 1283
    , 1290 (10th Cir. 2003).
    There is no dispute that the term of supervised release imposed by the district
    court is within the range specified in the Guidelines and no evidence to suggest the
    district judge misunderstood the law. Thus, there is no jurisdictional basis for
    review and accordingly, we DISMISS the appeal.
    Entered by the Court:
    TERRENCE L. O’BRIEN
    United States Circuit Judge
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