United States v. Ariel Pantoja , 687 F. App'x 350 ( 2017 )

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* Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5th Cir.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.
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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
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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.
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