United States v. MacIel-vasquez ( 2006 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,  No. 05-50524
Plaintiff-Appellee,
v.  D.C. No.
CR-04-00694-GHK
MARIO MACIEL-VASQUEZ,
OPINION
Defendant-Appellant.

Appeal from the United States District Court
for the Central District of California
George H. King, District Judge, Presiding
Submitted June 7, 2006*
Pasadena, California
Filed August 16, 2006
Before: Sidney R. Thomas and Ronald M. Gould,
Circuit Judges, and William W Schwarzer,** District Judge.
Opinion by Judge Gould;
Partial Concurrence and Partial Dissent by Judge Thomas
*This panel unanimously finds this case suitable for decision without
oral argument. See Fed. R. App. P. 34(a)(2).
**The Honorable William W Schwarzer, Senior United States District
Judge for the Northern District of California, sitting by designation.
9715
9718 UNITED STATES v. MACIEL-VASQUEZ
COUNSEL
Elizabeth A. Newman, Deputy Federal Public Defender, Los
Angeles, California, for defendant-appellant Mario Maciel-
Vasquez.
Sean K. Lokey, Assistant United States Attorney, Riverside,
California, for plaintiff-appellee United States of America.
OPINION
GOULD, Circuit Judge:
Mario Maciel-Vasquez (“Maciel”) appeals his sentence,
which was imposed after his plea of guilty to one count of
violation of 8 U.S.C. § 1326. Maciel contends that his sen-
tence is unreasonable under United States v. Booker, 542 U.S.
220 (2005), that 8 U.S.C. § 1326 is unconstitutional, and that
the district court committed plain error when it imposed sev-
eral conditions of supervised release.1
First, we consider the alleged Booker error.2 Maciel argues
1
Because the parties are familiar with the factual and procedural history,
we recount it here only to the extent necessary to understand our decision.
2
“Booker requires that appellate courts review the reasonableness of all
sentences, which is informed by the Guidelines calculation as well as by
the other factors set forth in § 3553(a).” United States v. Plouffe, 445 F.3d
1126, 1128 (9th Cir. 2006). We review questions of law de novo. Torres-
Lopez v. May, 111 F.3d 633, 638 (9th Cir. 1997).
UNITED STATES v. MACIEL-VASQUEZ 9719
that his sentence of 36 months is unreasonable under Booker.
Maciel concedes that the district court considered the statu-
tory factors outlined in 18 U.S.C. § 3553(a), and he does not
allege that the district court erred in calculating the advisory
Guidelines range. Maciel argues, nonetheless, that because the
district court did not state why it imposed a sentence of 36
months rather than some other sentence, the district court
treated the Guidelines sentence as a presumptive sentence,
which he urges is impermissible under United States v.
Zavala, 443 F.3d 1165 (9th Cir. 2006).
[1] We reject Maciel’s contention that the sentence was
unreasonable. The district court did not give greater weight to
the Guidelines calculation than it did to the other § 3553(a)
factors, and so Maciel’s argument resting upon Zavala fails.
Further, as for the argument that the district court did not
explain why it selected a 36 month sentence rather than some
other term, Maciel has not presented any precedent supporting
this argument, and neither Booker nor our circuit precedent
impose any requirement that the district court state why it
chose a particular sentence rather than other potential sen-
tences.
[2] Second, Maciel argues that 8 U.S.C. § 1326(b)(2) is
unconstitutional. That argument is foreclosed by Almendarez-
Torres v. United States, 523 U.S. 224 (1998). Maciel argues
that recent Supreme Court cases have undermined
Almendarez-Torres. As we explained in United States v. Wei-
land, 420 F.3d 1062 (2005), “[a]lthough recent Supreme
Court jurisprudence has perhaps called into question the con-
tinuing viability of Almendarez-Torres, we are bound to fol-
low a controlling Supreme Court precedent until it is
explicitly overruled by that Court.” Id. at 1079 n.16 (internal
citation omitted). Accordingly, we reject Maciel’s argument
that 8 U.S.C. § 1326(b)(2) is unconstitutional.
[3] Third, we evaluate the challenged conditions of super-
vised release. Maciel advocates that it was plain error for the
9720 UNITED STATES v. MACIEL-VASQUEZ
district court to impose a condition of supervised release
requiring him to “participate in outpatient substance abuse
treatment and submit to drug and alcohol testing as instructed
by the probation officer,” in light of United States v. Stephens,
424 F.3d 876 (9th Cir. 2005), reh’g en banc denied 439 F.3d
1083 (9th Cir. 2006).3 The challenged provision is somewhat
ambiguous: If it is interpreted to give the probation officer
authority to designate drug and alcohol testing only as inci-
dental to the treatment program, then there is no error under
Stephens. Id. at 878-79. On the other hand, if the challenged
provision is interpreted to give the probation officer authority
to require testing apart from any treatment program, then it is
an error under Stephens. Id. at 882. We need not, however,
construe this condition for purposes of this appeal and plain
error review, because any error or prejudice caused by the dis-
trict court’s decision to impose this condition did not seri-
ously affect the fairness, integrity, or public reputation of the
judicial proceedings. See United States v. Olano, 507 U.S.
725, 734-36 (1993); see also United States v. Ortiz-Torres,
449 F.3d 61, 75-76 (1st Cir. 2006) (“[W]e conclude that the
improper delegation that occurred here does not rise to the
level of plain error, since it neither affects substantial rights
nor ‘impugn[s] the fairness, integrity or public reputation of
the criminal proceedings as a whole.’ ” (quoting United States
v. Padilla, 415 F.3d 211, 221 (1st Cir. 2005) (en banc) (sec-
ond alteration in original)). Accordingly, we would not vacate
this condition, even if imposing this condition was an error
under Stephens.
3
Where, as here, the defendant did not object to the conditions at sen-
tencing, we review for plain error. Stephens, 424 F.3d at 879 n.1. “Before
an appellate court can correct an error not raised at trial, ‘there must be
(1) error, (2) that is plain, and (3) that affects substantial rights. If all three
conditions are met, an appellate court may then exercise its discretion to
notice a forfeited error, but only if (4) the error seriously affects the fair-
ness, integrity, or public reputation of judicial proceedings.’ ” United
States v. Jordan, 256 F.3d 922, 926 (9th Cir. 2001) (quoting Johnson v.
United States, 520 U.S. 461, 466-67 (1997)).
UNITED STATES v. MACIEL-VASQUEZ 9721
[4] Maciel also challenges a condition of supervised release
requiring him to “abstain from using illicit drugs, alcohol, and
abusing prescription medications during the period of supervi-
sion.” Maciel argues that this was plain error because he “has
never been convicted of an alcohol-related crime” and that
“there is nothing to suggest that alcohol has ever caused prob-
lems in his life.” However, and to the contrary, in 1992 Mac-
iel pleaded guilty to driving under the influence of alcohol, in
violation of California Vehicle Code § 23152(a). The United
States argues that this prior conviction, along with a misde-
meanor arrest for possession of an open bottle of alcohol and
with Maciel’s history of drug abuse, justifies the special con-
dition requiring Maciel to abstain from alcohol. We agree.
The district court did not err, let alone plainly err, in imposing
this condition of supervised release. See United States v. Car-
ter, 159 F.3d 397, 401 (9th Cir 1998).
Maciel further argues that the condition of supervised
release requiring him to report to the probation office within
72 hours of arriving in the United States violates his Fifth
Amendment right not to incriminate himself. That argument
is foreclosed by United States v. Rodriguez-Rodriguez, 441
F.3d 767 (2006).
[5] Finally, the judgment of conviction here refers to both
subsections 1326(a) and 1326(b)(2) of Title 8 U.S.C. When
the judgment refers to both subsections 1326(a) and
1326(b)(2), “the proper procedure under these circumstances
is to direct the district court to enter a corrected judgment
striking the reference to § 1326(b)(2) so that the judgment
will unambiguously reflect that the defendant was convicted
of only one punishable offense pursuant to § 1326(a).” United
States v. Rivera-Sanchez, 222 F.3d 1057, 1062 (9th Cir.
2000); see also Almendarez-Torres, 523 U.S. at 226 (holding
that § 1326(b) is a penalty provision and does not constitute
a separate crime). We remand to the district court for the lim-
ited purpose of striking the reference to § 1326(b)(2) in the
9722 UNITED STATES v. MACIEL-VASQUEZ
judgment. See United States v. Herrera-Blanco, 232 F.3d 715,
719 (9th Cir. 2000).
AFFIRMED, REMANDED TO CORRECT THE
JUDGMENT.
THOMAS, Circuit Judge, concurring in part and dissenting in
part:
I respectfully disagree with the majority that the district
court’s decision to impose a condition of supervised release
authorizing the probation officer to require unlimited drug and
alcohol testing outside of treatment did not constititute plain
error that seriously affect the fairness, integrity, or public rep-
utation of judicial proceedings. See United States v. Olano,
507 U.S. 725, 634-46 (1993).
It is “indisputable” that “the authority to define and fix the
punishment for crime is legislative.” Ex parte United States,
242 U.S. 27, 42 (1916). There are no federal common law
crimes. Liparota v. United States, 471 U.S. 419, 424 (1985).
Legislative action defines crimes and criminal procedure;
therefore, a court has no power to impose a sentence in excess
of statutory authority. United States v. Doe, 53 F.3d 1081,
1083-84 (9th Cir. 1995). It is Congress that “has the power to
define criminal punishments without giving the courts any
sentencing discretion.” Chapman v. United States, 500 U.S.
453, 467 (1991). “Harmless error cannot give the district
court authority it does not possess.” United States v. Olson,
716 F.2d 850, 853 (11th Cir. 1983).
In United States v. Stephens, 424 F.3d 876 (9th Cir. 2005),
we held that the district court lacked the statutory authority to
delegate the number of drug and alcohol tests administered to
a person subject to supervised release 18 U.S.C. § 3583(d),
stating that “the court, not the probation officer, [must] set the
UNITED STATES v. MACIEL-VASQUEZ 9723
maximum number of non-treatment-program drug tests to
which a defendant may be subjected.” Id. at 882.
As noted by the Third and Eleventh Circuits, the delegation
of a sentencing decision from an Article III judge to another
entity is plain error because “imposing a sentence not autho-
rized by law seriously affects the fairness, integrity, and repu-
tation of the proceedings.” United States v. Pruden, 398 F.3d
241, 251 (3d Cir. 2005) (quoting United States v. Evans, 155
F.3d 245, 252 (3d Cir. 1998)); see also United States v. Nash,
438 F.3d 1302, 1304 (11th Cir. 2006). The Fifth, Seventh and
Tenth Circuits have similarly held that such delegation consti-
tutes plain error. United States v. Overholt, 307 F.3d 1231,
1255-56 (10th Cir. 2002) (delegation of restitution payment
schedule); United States v. Pandiello, 184 F.3d 682, 688 (7th
Cir. 1999) (same); United States v. Albro, 32 F.3d 173, 174
(5th Cir. 1994) (same); but see United States v. Padilla, 415
F.3d 211 (1st Cir. 2005) (en banc) (holding that the improper
delegation of determining the number of non-treatment drug
tests to impose as a condition of supervised release to the pro-
bation officer cannot be plain error).
In an individual context, I can understand why one might
reach the conclusion that a particular sentence does not appear
to affect the fairness, integrity, and reputation of the proceed-
ings. However, in my opinion, there is a broader principle at
stake when an extra-statutory punishment is imposed. In my
view, imposing a sentence in violation of statutory authority,
particularly one involving improper delegation of judicial
authority, is the type of error that necessarily and inherently
must affect the fairness, integrity, and reputation of the pro-
ceedings, regardless of the individual context. Therefore, I
must respectfully dissent.