United States v. Mario Hernandez-Servera , 458 F. App'x 674 ( 2011 )

FILED
NOT FOR PUBLICATION NOV 18 2011
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 10-50461
Plaintiff-Appellee, D.C. No. 306-cr- 01156-GT-1
v.
MEMORANDUM *
MARIO HERNANDEZ-SERVERA,
Defendant-Appellant.
Appeal from the United States District Court
for the Southern District of California
Gordon Thompson, Jr., District Judge, Presiding
Submitted November 16, 2011 **
Pasadena, California
Before: W. FLETCHER and RAWLINSON, Circuit Judges, and MILLS,
Senior District Judge***
*
This disposition is not appropriate for publication and may not be cited to or
by the courts of this circuit except as may be provided by Ninth Circuit Rule 36-3.
**
The panel unanimously finds this case suitable for decision without oral
argument. See Fed. R. App. P. 34(a)(2).
***
The Honorable Richard Mills, Senior District Judge for the Central District of
Illinois, sitting by designation.
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Defendant-Appellant Mario Hernandez-Servera (“Hernandez ”) appeals the
district court’s judgment revoking his supervised release and denying his motion
challenging the constitutionality of the supervised release statute, 18 U.S.C. §
3583. Hernandez argues that 18 U.S.C. § 3583(e) is facially unconstitutional
because it permits judges to find supervised release violations by a preponderance
of the evidence instead of requiring a jury determination of proof beyond a
reasonable doubt. Because supervised release revocation and criminal contempt
share a similar purpose, similar elements, and similar underlying policy concerns,
Hernandez contends that supervised release revocation is, at essence, the same as
criminal contempt, and thus subject to the same due process requirements
applicable to criminal contempt prosecutions.
“Supervised release is an integral part of the federal sentencing structure,
similar in purpose and scope to its predecessor, parole.” United States v.
Huerta-Pimental, 445 F.3d 1220, 1222 (9th Cir. 2006). The United States
Supreme Court has held that parole revocation hearings are not equivalent to
criminal prosecutions, and due process does not require parole violations to be
found by a jury or proven beyond a reasonable doubt. Morrissey v. Brewer, 408
U.S. 471, 483-485, 489 (1972). The same constitutional analysis applies to parole,
probation, and supervised release. United States v. Hall, 419 F.3d 980, 985 n.4
-2-
(9th Cir. 2005). The district court correctly denied Hernandez’s constitutional
challenge to § 3583.
Hernandez also argues that the district court violated Apprendi v. New
Jersey, 530 U.S. 465 (2000), by imposing a six-month revocation sentence after he
had already served the maximum term of imprisonment specified in the substantive
statute of conviction, 8 U.S.C. § 1325. This Court has previously held “that § 3583
authorizes the revocation of supervised release even where the resulting
incarceration, when combined with the period of time the defendant has already
served for his substantive offense, will exceed the maximum incarceration
permissible under the substantive statute.” United States v. Purvis, 940 F.2d 1276,
1279 (9th Cir. 1991). Supervised release is not additional punishment and
Apprendi is not implicated when a judge imposes a period of supervised release to
follow a term of imprisonment because the maximum sentence prescribed by
statute for qualifying offenses is the maximum term of imprisonment under the
substantive statute of conviction plus a term of supervised release that is added
to—rather than substituted for a portion of—the term of imprisonment. United
States v. Liero, 298 F.3d 1175, 1178 (9th Cir. 2002); see also Huerta-Pimental,
445 F.3d at 1223.
AFFIRMED.
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