United States v. Rosales , 341 F. App'x 65 ( 2009 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
August 11, 2009
No. 07-51431
Summary Calendar Charles R. Fulbruge III
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
RAYMUNDO ROSALES,
Defendant-Appellant
Appeal from the United States District Court
for the Western District of Texas
USDC No. 2:04-CR-368-ALL
Before BENAVIDES, PRADO, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
Raymundo Rosales appeals the three-year term of supervised release
imposed by the district court following the revocation of his supervised release.
In 2004, Raymundo Rosales pleaded guilty to importation of less than 50
kilograms of marijuana and possession with intent to distribute less than 50
kilograms of marijuana in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(D), 952(a),
and 960(a)(1) & (b)(4). Rosales was sentenced to 21 months of imprisonment
*
Pursuant to 5 TH C IR. 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should not be published and is not precedent except under the limited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 5 TH C IR. R. 47.5.4.
No. 07-51431
followed by a three-year term of supervised release on each count, to be served
concurrently. In 2007, the district court revoked Rosales’s original term of
supervised release and sentenced him to a 10-month term of imprisonment and
a three-year term of supervised release on each count to run concurrently.
Rosales does not challenge the 10-month sentence imposed by the district
court but instead contends that the district court erred in imposing a three-year
term of supervised release upon revocation of his original term of supervised
release. Rosales challenges the district court’s interpretation of 18 U.S.C. § 3583
and the supervised release provisions of 21 U.S.C. §§ 841 and 960, asserting that
under § 3583, the district court was required to deduct any term of
imprisonment imposed upon revocation from the maximum three-year term of
supervised release. This court reviews a district court’s statutory interpretation
de novo. United States v. Ridgeway, 489 F.3d 732, 734 (5th Cir. 2007).
Section 3583(h) allows a district court to impose a new term of supervised
release after revoking a prior term. The length of the new supervised release
term may not exceed the term of supervised release authorized by the statute for
the underlying offense “less any term of imprisonment that was imposed upon
revocation of supervised release.” § 3583(h). Both § 841(b)(1)(D) and § 960(b)(4)
provide only minimum terms of at least two years of supervised release.
However, in 2002, Congress amended Rosales’s statutes of conviction to provide
certain terms of supervised release “[n]otwithstanding section 3583 of Title 18.”
See 21st Century Department of Justice Appropriations Authorization Act, Pub.
L. No. 107-273, § 3005(a), 116 Stat. 1758, 1805 (amending § 841(b)(1)); Pub. L.
No. 107-273, § 3005(b), 116 Stat. at 1806 (amending § 960(b)(4)).
We recently considered and rejected arguments almost identical to those
that Rosales raises on rehearing in United States v. Jackson, 559 F.3d 368, 370-
72 (5th Cir. 2009). Although we did not address § 960 in Jackson, we made it
clear that “the plain language of § 3583(h) conditions the maximum new term
of supervised release on the term authorized for the original criminal offense.”
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No. 07-51431
Id. at 371. Our holding in Jackson overruled United States v. Kelly, 974 F.2d 22,
24-25 (5th Cir. 1992) in relevant part, see id., and therefore Rosales’s reliance on
Kelly is unavailing.
In this case, both § 841 and § 960 provide an authorized term of supervised
release upon revocation of any term two years or greater, up to life. See
§§ 841(b)(1)(D), 960(b)(4); see also Jackson, 559 F.3d at 370-71. Thus, our
reasoning in Jackson is applicable in this case. Accordingly, the district court
did not err in sentencing Rosales to concurrent three-year terms of supervised
release.
The judgment of the district court is AFFIRMED.
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