United States v. Montalvo ( 2003 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_____________________
No. 01-41304
_____________________
UNITED STATES OF AMERICA
Plaintiff - Appellee
v.
RAFAEL MONTALVO, JR
Defendant - Appellant
_________________________________________________________________
Appeal from the United States District Court
for the Southern District of Texas
(99-CR-469)
_________________________________________________________________
January 14, 2003
Before KING, Chief Judge, and JONES and EMILIO M. GARZA, Circuit
Judges.
PER CURIAM:*
Rafael Montalvo, Jr., appeals from the judgment entered by
the district court revoking his supervised release. Rather than
challenging that decision, though, Montalvo instead raises for
the first time on this appeal questions about whether the
*
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that this opinion should not be published and is not precedent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.
magistrate judge who originally took the guilty plea for his
underlying offense had the subject matter jurisdiction to do so.
Because we find that the defect that Montalvo has alleged is a
procedural defect and not a jurisdictional one, Montalvo has
waived such a challenge. We therefore affirm the judgment of the
district court.
I. FACTS AND PROCEDURAL HISTORY
In October, 1998, District Judge Hilda Tagle sent a
memorandum to Magistrate Judge John Black that requested Black to
“begin taking felony guilty pleas beginning in November 1998” for
certain classes of cases. Included in the list were cases
arising under 18 U.S.C. § 1324, dealing with the unlawful
transportation of aliens. On December 7, 1999, Defendant-
Appellant Rafael Montalvo, Jr., was charged by indictment with
two counts of violating § 1324. Montalvo agreed to plead guilty
to Count I of the indictment in exchange for a dismissal of Count
II. Montalvo also consented in writing to enter his plea before
a magistrate judge.
On December 16, Montalvo entered his guilty plea before the
magistrate. The magistrate filed a report on December 21
recommending that the district court accept the plea. Although
the report states that the case had been referred to the
magistrate for the purpose of Montalvo entering his plea, the
2
district court judge did not sign the actual order making the
referral until December 30.
Neither the government nor Montalvo objected to the pre-
sentence report, and Montalvo filed a motion to have the district
court approve the plea agreement and accept the government’s
recommendation that he receive a two-level sentencing reduction
in exchange for his plea. In March 2000, the district court
adopted the plea agreement and sentenced Montalvo to ten months’
imprisonment, three years’ supervised release, and a $100 special
assessment. At that time, Montalvo did not raise before the
district court judge the issue of the mistiming of the order of
reference. Montalvo did not appeal his sentence.
Montalvo’s supervised release began September 19, 2000. In
August 2001, the district court issued an arrest warrant for
Montalvo, who had assaulted his girlfriend a month earlier.
Montalvo was arrested in September 2001. At an October hearing
to revoke his supervised release, Montalvo admitted each of the
allegations against him concerning his behavior while on
supervised release. The district court, departing upward from
the Guidelines recommendation, sentenced Montalvo to twenty-three
months’ imprisonment followed by thirteen months’ supervised
release. Montalvo, at the time of the revocation hearing, did
not argue that his underlying conviction was void for lack of
jurisdiction on account of the mistiming of the order of
reference to the magistrate.
3
Montalvo timely filed notice of appeal from the revocation
judgment, arguing not that the revocation of his supervised
release was inappropriate but that the magistrate presiding over
his original conviction lacked jurisdiction to accept his plea in
the first place.
II. POST-CONVICTION CHALLENGES TO MAGISTRATES’ JURISDICTION TO
HEAR GUILTY PLEAS
An appellate court reviews a question of whether a
magistrate had jurisdiction de novo. United States v. Real
Property, 135 F.3d 1312, 1314 (9th Cir. 1998). Montalvo
questions the validity of his underlying conviction for the first
time on this appeal. His conviction became final over two years
ago; the 10-day statutory period for filing a direct appeal has
lapsed. United States v. Rodriguez, 278 F.3d 486, 489-90 (5th
Cir. 2002) (“The filing of a notice of appeal within the 10-day
period prescribed by [Federal Rule of Appellate Procedure
4(b)(1)] is mandatory and jurisdictional.”). The government
argues that an appeal from a post-conviction hearing is not the
appropriate forum for challenging the underlying conviction.
Because Montalvo failed to object during the proceedings
underlying his original conviction, and then let the statutory
appeal period lapse, the government argues that his sole remedy
for challenging his underlying conviction at this point is a
collateral attack via 28 U.S.C. § 2255. Montalvo, while
conceding that he did not object and did not appeal his original
4
conviction, contends that he can raise the issue for the first
time in this appeal of a post-conviction hearing because it goes
to the heart of the magistrate’s subject matter jurisdiction – a
matter which cannot be waived even by consent of the parties.
A recent Fifth Circuit decision disposes of the issue in
this case. Under similar circumstances, we held that a challenge
to a “district judge’s tardy referral order pursuant to
§ 636(b)(3)” constitutes a procedural defect that can be waived
if not properly preserved. United States v. Bolivar-Munoz, No.
01-40967, F.3d , *5-*6 (5th Cir. Nov. 20, 2002). Because
Montalvo failed to object or otherwise preserve the issue, he has
waived his right to challenge it for the first time in this
appeal from his revocation proceeding.**
III. CONCLUSION
We AFFIRM the district court’s judgment revoking Montalvo’s
supervised release.
**
As we did in United States v. Teran, 98 F.3d 831, 833
n.1 (5th Cir. 1996), we leave open the question of whether a
defendant can attack the validity of his underlying sentence in a
probation revocation proceeding on jurisdictional grounds. The
mistake in this case was procedural, not jurisdictional.
5