United States v. Brian Cota

• Court: Court of Appeals for the Ninth Circuit
• Decided: August 10, 2022
• Docket: 21-50132
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS AUG 10 2022 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 21-50132

Plaintiff-Appellee, D.C. Nos. 3:16-cr-07131-LAB-1 v. 3:16-cr-07131-LAB

BRIAN COTA, MEMORANDUM* Defendant-Appellant.

Appeal from the United States District Court for the Southern District of California Larry A. Burns, District Judge, Presiding

Submitted August 8, 2022** San Francisco, California

Before: RAWLINSON, BADE, and BRESS, Circuit Judges.

Brian Cota appeals the sentence imposed upon his second revocation of

supervised release. The district court sentenced Cota to twenty-four months’

imprisonment and three years’ supervised release. We have jurisdiction under 28

U.S.C. § 1291. We remand so that the district court can make the written judgment

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). consistent with the oral pronouncement of Cota’s sentence. We otherwise affirm.

1. Cota argues that the district court erred in imposing a term of

imprisonment that, when aggregated with a term of imprisonment imposed after a

prior revocation of supervised release, exceeds three years. We disagree. The

maximum term of imprisonment that Cota could serve following revocation was

two years. 18 U.S.C. § 3583(e)(3); see also id. § 3559(a)(3). District courts need

not “reduce the maximum term of imprisonment to be imposed upon revocation by

the aggregate length of prior revocation imprisonment terms.” United States v.

Knight, 580 F.3d 933, 937 (9th Cir. 2009). And nothing represented in the change

of plea hearing or the plea agreement suggests that, contrary to Ninth Circuit law,

the district court was required to reduce the maximum term of post-revocation

imprisonment by the aggregate length of the custodial term Cota had served

following a prior revocation of supervised release.

2. We reject Cota’s argument that the district court erred by imposing a

three-year term of supervised release. The three-year term of supervision is lawful

under 18 U.S.C. § 3583(h) because the maximum term of supervised release

authorized by statute for the offense that resulted in Cota’s original term of

supervision is life. See United States v. Ross, 338 F.3d 1054, 1057 (9th Cir. 2003)

(per curiam); United States v. Barragan, 263 F.3d 919, 925 (9th Cir. 2001)

(explaining that “the supervised release terms authorized by 21 U.S.C. § 841 trump

2 the maximums set forth in § 3583(b)(2)” for offenses involving controlled

substances). Cota resists this result by arguing that the “instant term of supervised

release creates a serious problem under Federal Rule of Criminal Procedure 11”

because, according to Cota, the magistrate judge’s plea colloquy did not advise

him that he could be sentenced to a life term of supervision. We express no view

on the merits of Cota’s Rule 11 challenge because this appeal “is not the proper

avenue for a collateral attack on the underlying conviction.” United States v.

Simmons, 812 F.2d 561, 563 (9th Cir. 1987); see also United States v. Castro-

Verdugo, 750 F.3d 1065, 1068–71 (9th Cir. 2014); United States v. Gerace, 997

F.2d 1293, 1295 (9th Cir. 1993).

We also disagree with Cota that our decision in United States v. Ramirez,

324 F. App’x 663 (9th Cir. 2009), precluded the district court from imposing a

three-year term of supervision. Ramirez is not binding authority. And even if it

were, Ramirez is distinguishable because Cota’s sentence is not at odds with any

representations that the government made in the course of securing his guilty plea.

See id. at 664.

3. Cota argues that the district court erred by not explaining the sentence

it imposed and by failing to respond to his mitigation arguments. He also contends

that the district court erred by not responding to the written brief he submitted after

sentencing. We disagree. The record reflects that the district court correctly

3 calculated the Guidelines range, considered the factors in 18 U.S.C. § 3553(a), and

adequately explained the outside-Guidelines range sentence it selected. See United

States v. Carty, 520 F.3d 984, 993 (9th Cir. 2008) (en banc). The district court

sufficiently considered and rejected Cota’s mitigation arguments. And the reason

Cota’s written brief did not persuade the district court is inferable from the record.

Id. at 992 (explaining an “adequate explanation” may “be inferred from . . . the

record as a whole”).

4. Cota next maintains that his sentence is substantively unreasonable

because it is “greater than necessary to sanction [him] for breaching the court’s

trust.” The district court did not abuse its discretion. Gall v. United States, 552

U.S. 38, 51 (2007). Cota’s sentence is substantively reasonable under the

§ 3553(a) factors and totality of the circumstances. Id.; Carty, 520 F.3d at 993.

Cota argues that his sentence violates due process. But Cota’s due process

argument is really a collateral attack on the voluntariness of his guilty plea. We

therefore do not reach the argument’s merits. See, e.g., Gerace, 997 F.2d at 1295;

Simmons, 812 F.2d at 563.

5. The parties agree that remand is warranted because there are

discrepancies between the sentence the district court orally imposed and the written

judgment that followed. We agree and conclude that Conditions 5, 7, and 10 in the

written judgment conflict with the district court’s oral pronouncement (we disagree

4 with Cota that Conditions 6 and 13 encounter the same problem). We therefore

“remand so that the district court can make the written judgment consistent with

the oral pronouncement.” United States v. Hernandez, 795 F.3d 1159, 1169 (9th

Cir. 2015) (citation omitted).

AFFIRMED in part; REMANDED to correct the judgment.