United States v. Ariel Pantoja ( 2017 )


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  •      Case: 16-50562       Document: 00513961105         Page: 1     Date Filed: 04/20/2017
    IN THE UNITED STATES COURT OF APPEALS
    FOR THE FIFTH CIRCUIT
    United States Court of Appeals
    Fifth Circuit
    No. 16-50562                                 FILED
    Summary Calendar                           April 20, 2017
    Lyle W. Cayce
    Clerk
    UNITED STATES OF AMERICA,
    Plaintiff - Appellee
    v.
    ARIEL PANTOJA, also known as Ariel Salgado Pantoja,
    Defendant - Appellant
    Appeal from the United States District Court
    for the Western District of Texas
    USDC No. 7:08-CR-113-1
    Before BARKSDALE, GRAVES, and COSTA, Circuit Judges.
    PER CURIAM: *
    Ariel Pantoja contests the five-year term of supervised release imposed
    following his third revocation of supervised release, contending the term
    exceeds the statutory maximum under 18 U.S.C. § 3583(h). Although Pantoja
    failed, in district court, to object to the term of supervised release, his
    contention is reviewed de novo. See United States v. Vera, 
    542 F.3d 457
    , 459
    * Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not
    be published and is not precedent except under the limited circumstances set forth in 5th Cir.
    R. 47.5.4.
    Case: 16-50562     Document: 00513961105      Page: 2    Date Filed: 04/20/2017
    No. 16-50562
    (5th Cir. 2008) (sentence exceeding statutory maximum is illegal; therefore,
    reversible plain error).
    Pantoja was originally convicted, inter alia, of possession, with intent to
    distribute, a controlled substance (cocaine), in violation of 21 U.S.C. § 841(a)(1),
    (b)(1)(C) and 18 U.S.C. § 2. His terms of supervised release were revoked for
    testing positive for cocaine. An additional three months’ imprisonment was
    imposed, to be followed by, inter alia, 36 months’ supervised release for the
    cocaine count. While on his second term of supervised release, Pantoja tested
    positive for, and admitted to using, cocaine and marijuana. He was sentenced
    to an additional five months’ imprisonment and, inter alia, 24 months’
    supervised release for the cocaine count. When Pantoja tested positive for
    cocaine during his third term of supervised release, he was sentenced to, inter
    alia, 12 months’ imprisonment and five years’ supervised release on the
    cocaine count.
    Pantoja contends the maximum term of supervised release for this
    offense, a Class C felony, is 36 months. See 18 U.S.C. § 3583(b)(2). According
    to Pantoja, because the aggregate of his terms of post-revocation imprisonment
    totaled 20 months, the maximum term of supervised release authorized by
    § 3583(h) was 16 months. Pantoja maintains the court erred in imposing
    supervised release of five years because it exceeded the maximum term
    available, after crediting his prior terms of imprisonment or, alternatively,
    because it exceeded the statutory maximum of 36 months.
    The Government disputes Pantoja’s claim that the statutory maximum
    term of imprisonment is three years. Instead, the Government maintains this
    court must apply 21 U.S.C. § 841(b)(1)(C) to determine the applicable statutory
    maximum term of supervised release. That provision states the statutory
    minimum term of supervised release is three years, but it does not set a
    2
    Case: 16-50562    Document: 00513961105     Page: 3   Date Filed: 04/20/2017
    No. 16-50562
    maximum term, so the sentencing court is authorized to impose a lifetime term
    of supervised release.   21 U.S.C. § 841(b)(1)(C); see also United States v.
    Jackson, 
    559 F.3d 368
    , 371 (5th Cir. 2009) (lifetime supervised release is
    permissible under § 841).
    In Jackson, this court considered and rejected the same contention
    Pantoja presents. 
    See 559 F.3d at 371
    –72. Our court noted Congress amended
    § 841 in 2002 to provide that the longer terms of supervised release set forth
    under § 841 applied, “[n]otwithstanding section 3583 of Title 18”. 
    Id. at 370
    (emphasis and alteration in original). This court held § 3583(b) did not apply
    when the offense that resulted in the original term of supervised release was a
    violation of § 841(b)(1)(C). 
    Id. at 370
    –71. Pantoja’s contention is foreclosed by
    Jackson.
    AFFIRMED.
    3
    

Document Info

Docket Number: 16-50562 Summary Calendar

Judges: Barksdale, Graves, Costa

Filed Date: 4/20/2017

Precedential Status: Non-Precedential

Modified Date: 3/2/2024