United States v. Jimenez

275 F. App'x 433
CourtCourt of Appeals for the Fifth Circuit
DecidedApril 29, 2008
Docket06-41678
StatusUnpublished
Cited by20 cases

This text of 275 F. App'x 433 (United States v. Jimenez) is published on Counsel Stack Legal Research, covering Court of Appeals for the Fifth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Jimenez, 275 F. App'x 433 (5th Cir. 2008).

Opinion

PER CURIAM: *

Defendant-appellant Jose Vicente Jimenez (“Jimenez”) challenges his five-year sentence upon revocation of his supervised release, which also included a requirement that Jimenez register as a sex offender. For the following reasons, the revocation sentence is AFFIRMED but the requirement to register as a sex offender is VACATED. The case is REMANDED to the district court for further proceedings.

I.

In 2001, Jimenez pled guilty to possession with intent to distribute more than 1,000 kilograms of marijuana in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(A). He did not waive appellate or collateral review rights. The district court sentenced him to a term of five-years imprisonment followed by five years of supervised release.

Jimenez was released from custody and began his supervised release on June 4, 2004. On November 1, 2006, the district court issued a warrant for Jimenez’s arrest based on a petition filed by Jimenez’s probation officer alleging three violations of his supervised release conditions: (1) Jimenez violated the mandatory condition of supervision requiring him not to commit another federal, state, or local crime by committing (a) assault, (b) aggravated sexual assault, (c) indecency with a child, and (d) prohibited sexual conduct; (2) Jimenez illegally possessed and used a controlled substance; and (3) Jimenez did not support his dependents by failing to pay child support. At his revocation hearing, Jimenez pled “not true” to allegation (1), and “true” to allegations (2) and (3). The Government offered into evidence the police reports of the alleged offenses prepared by the investigating officers. Jimenez objected to the admission of the police reports as a violation of the Confrontation Clause. The district court overruled his objection and admitted the documents under seal. Defense counsel advised the court that the charge relating to the assault allegations (l)(a) had been dismissed.

The district court accepted Jimenez’s plea of “true” to allegations (2) and (3) and found him in violation of the conditions of supervised release. The district court further noted that:

[T]he Court considers the evidence before it and finds that he has violated all these other conditions of his super-vised release term alleged in the petition for warrant or summons for an offender under supervision, and he’s adjudged guilty of all these offenses.

After some discussion regarding Jimenez’s violations, the district court imposed the statutory maximum of sixty months in pi’ison after considering the factors under 18 U.S.C. § 3553(a). The district court also added, “[u]pon release from imprisonment, no further supervised release, and I’ll require that [Jimenez] register as a sex offender upon his release from imprisonment with all of the state and national sex offender registries.” The district court *436 then stated, “[a]nd I will recommend that this sentence run concurrent with your state sentence that you might receive for these allegations.” The PSR recommended a sentence of 30 months with a determination that Jimenez’s statutory guidelines range was 24 to 30 months. The district court imposed the statutory maximum of sixty months.

Jimenez timely appeals and raises three issues: (A) whether the district court’s five-year prison sentence upon revocation of Jimenez’s supervised release was unreasonable and/or plainly unreasonable; (B) whether the district court abused its discretion when it ordered Jimenez to register as a sex offender after completing his term of imprisonment; and (C) whether the district court erred in failing to include in its written judgment a recommendation that Jimenez’s sentence run concurrent to any future state sentence that might be imposed based on the allegations in the petition to revoke.

II.

Jimenez first challenges the revocation sentence as unreasonable. “Prior to Booker, this court would uphold a sentence imposed ‘after revocation of supervised release unless it [was] in violation of law or [was] plainly unreasonable.’ ” United States v. McKinney, 520 F.3d 425, 428 (5th Cir.2008) (quoting United States v. Stiefel, 207 F.3d 256, 259 (5th Cir.2000)). “In Booker, however, the Supreme Court excised § 3742(e) and directed appellate courts to review for unreasonableness.” Id. “This court has declined to resolve which standard of review applies to revocation sentences after Booker; instead, this court has reviewed revocation cases under (a) both the ‘plainly unreasonable’ and the Booker unreasonableness standards of review or (b) the more exacting Booker unreasonableness standard.” Id. We again decline to resolve this issue; because Jimenez did not object to his revocation sentence, we therefore must review under a plain error standard of review. United States v. Jones, 484 F.3d 783, 792 (5th Cir.2007) (“[B]eeause [defendant] made no objection to his revocation sentence in the district court, so it is subject only to plain error review on appeal.”). “As such, his revocation sentence must be upheld unless we conclude that there is (1) error, (2) that is plain,(3) that affects substantial rights and (4) the error seriously affects the fairness, integrity, or public reputation of judicial proceedings.” Id. (internal quotation and citation omitted).

A.

First, Jimenez argues that because the district coui’t did not provide any reasons for its upward departure, the sentence should be vacated and remanded. As justification for its upward departure, the district court only stated that “[t]he Court considers the[] factors under 18 U.S.C. § 3553(a) and concludes this sentence is within these — that I’m going to pronounce, satisfies them.” An explanation must be provided if a district court issues a non-Guidelines sentence in the revocation sentencing setting. United States v. Smith, 417 F.3d 483, 490 & n. 35 (5th Cir.2005) (citing United States v. Mares, 402 F.3d 511, 519 (5th Cir.2005)). Under Mares:

when the judge elects to give a non-Guideline sentence, she should carefully articulate the reasons she concludes that the sentence she has selected is appropriate for that defendant.

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Bluebook (online)
275 F. App'x 433, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-jimenez-ca5-2008.