United States v. Jerry Lee Cantu

112 F.3d 517, 1997 U.S. App. LEXIS 14577, 1997 WL 207952

• Court: Court of Appeals for the Ninth Circuit
• Decided: April 25, 1997
• Docket: 96-10451
• Status: Unpublished

Opinion

112 F.3d 517

NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel.
UNITED STATES of America, Plaintiff-Appellee,
v.
Jerry Lee CANTU, Defendant-Appellant.

No. 96-10451.

United States Court of Appeals, Ninth Circuit.

Submitted April 17, 1997.*
Decided April 25, 1997.

Before: NOONAN and TROTT, Circuit Judges, and MOSKOWITZ, District Judge.**

MEMORANDUM***

Jerry Lee Cantu appeals his twelve-month sentence of imprisonment, imposed after he violated the terms of his supervised release. Cantu argues that his sentence violates the Ex Post Facto Clause. We review Cantu's ex post facto challenge de novo. United States v. Canon, 66 F.3d 1073, 1077 (9th Cir.1995).

Under 18 U.S.C. § 401(3), the district court had the power to treat Cantu's supervised release violation as a contempt of court and to sentence Cantu to a term of imprisonment. Section 401(3) does not specify any maximum term of imprisonment. See United States v. Carpenter, 91 F.3d 1282, 1283 (9th Cir.1996). Although 18 U.S.C. § 402 provides for a six-month maximum, this limitation does not apply to contempts such as Cantu's, which are "committed in disobedience of any ... order ... entered in any suit or action brought or prosecuted in the name of, or on behalf of, the United States." 18 U.S.C. § 402.

Because 18 U.S.C. § 401(3) was effective at the time of Cantu's crimes, Cantu's sentence does not violate the Ex Post Facto Clause. Furthermore, because the length of Cantu's sentence was authorized by 18 U.S.C. § 401(3), we do not reach the question of whether the Ex Post Facto Clause precludes application of the supervised release provisions in the Anti-Drug Abuse Act of 1986, Pub.L. No. 99-570, § 1006, 100 Stat. 3207-6 to 3207-7 (1986).

AFFIRMED.

* The panel unanimously finds this case suitable for decision without oral argument. Fed.R.App.P. 34(a) and Ninth Circuit Rule 34-4

** The Honorable Barry Ted Moskowitz, District Judge for the Southern District of California, sitting by designation

*** 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