United States v. Cruz

128 F. App'x 627

• Court: Court of Appeals for the Ninth Circuit
• Decided: April 21, 2005
• Docket: No. 04-50259
• Status: Published

Opinion

MEMORANDUM

*

Defendant Victor Cruz appeals a thirty-six month sentence imposed by the district court when Cruz violated the conditions of two terms of supervised release. Cruz contends that the district court erred in imposing consecutive sentences because the terms of supervised release, on which the sentence is based, were ordered to run concurrently. In addition, Cruz maintains that the district court cannot sentence him to more than twenty-four months in prison following revocation of his supervised release. See 18 U.S.C. § 8583(e)(3) (providing a maximum prison term of two years where the district court revokes and terminates supervised release for a Class C or D felony). We review de novo the legality of a guideline sentence. See United States v. Jackson, 176 F.3d 1175, 1176 (9th Cir. 1999). For the reasons stated below, we affirm the district court.

A district court may impose consecutive sentences after the revocation of supervised release, even if the terms of supervised release were originally ordered to run concurrently. See id. at 1177; 18 U.S.C. § 3584 (affording a district court discretion to impose consecutive sentences). Section 5G1.2(d) allows district courts to “stack” (or run consecutively) sentences where the maximum statutory sentence for one count is less than the total punishment allowed by the offense level. See United States Sentencing Guidelines Manual (“U.S.S.G.”) § 5G1.2(d); United States v. Buckland, 289 F.3d 558, 570 (9th Cir.2002). In this case, the total punishment allowed by Cruz’s offense level was thirty to thirty-seven months. Thus, the district court was permitted to stack one twenty-four month sentence with the other twenty-four month sentence (discounted to twelve months) to achieve a thirty-six month sentence. See U.S.S.G. § 5G1.2(d).

Further, because Cruz’s sentence is not a correction or modification of an “arithmetical, technical, or other clear error,” it does not violate Federal Rule of Criminal Procedure 35(a).

AFFIRMED.

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3.