United States v. Mendiola

696 F.3d 1033, 2012 WL 4841278, 2012 U.S. App. LEXIS 21209
CourtCourt of Appeals for the Tenth Circuit
DecidedOctober 12, 2012
Docket11-2209
StatusPublished
Cited by43 cases

This text of 696 F.3d 1033 (United States v. Mendiola) is published on Counsel Stack Legal Research, covering Court of Appeals for the Tenth 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. Mendiola, 696 F.3d 1033, 2012 WL 4841278, 2012 U.S. App. LEXIS 21209 (10th Cir. 2012).

Opinions

BRISCOE, Chief Judge.

Defendant Joseph Mendiola appeals from the district court’s imposition of a two-year term of imprisonment following revocation of his supervised release. Mendiola argues that, in light of the Supreme Court’s recent decision in Tapia v. United States, — U.S. -, 131 S.Ct. 2382, 180 L.Ed.2d 357 (2011), the district court committed plain error in basing the length of the revocation sentence on Mendiola’s need to participate in a prison-based drug rehabilitation program. Exercising jurisdiction pursuant to 28 U.S.C. § 1291, we agree with Mendiola. As a result, we reverse and remand to the district court with directions to vacate Mendiola’s revocation sentence and resentence.

I

On February 22, 2007, a federal grand jury indicted Mendiola on a single count of being a felon in possession of ammunition, in violation of 18 U.S.C. § 922(g)(1) and (2), and § 924(e). A federal arrest warrant was issued for Mendiola that same day, and the warrant was executed on March 20, 2007.

On May 7, 2007, Mendiola and the government entered into a written plea agreement, pursuant to which Mendiola agreed to plead guilty to an information charging him with a single count of being a felon in possession of ammunition, in violation of 18 U.S.C. §§ 922(g)(1) and 924(e).1 As part of the plea agreement, the government agreed to dismiss the original indictment.

On August 21, 2007, Mendiola was sentenced to a term of imprisonment of thirty-three months, to be followed by a three-year term of supervised release. The district court designated Mendiola to participate in the “500-Hour Drug Program.” Dist. Ct. Docket Entry 29, at 1. The district court also imposed several special conditions of supervised release, including a requirement that Mendiola “[participate in substance abuse program/drug testing.” Id.

Mendiola completed his term of imprisonment and commenced his term of supervised release on August 7, 2009. Approximately fifteen months later, on November 8, 2010, Mendiola’s supervising probation officer filed a petition seeking the revocation of Mendiola’s supervised release. The petition alleged that Mendiola (1) “admitted to using methamphetamine on a weekly basis” during the month of October 2010, (2) tested positive for methamphetamine, and (3) “left [his] family home in Roswell, New Mexico” on November 3, 2010, “and ha[d] not returned.” Dist. Ct. Docket Entry 34, at 1. On December 8, 2010, the district court held a hearing on the petition, during which Mendiola admitted the violations. The district court sentenced Mendiola to “23 DAYS OR TIME SERVED [following his arrest on the petition], WHICHEVER IS LESS.” Dist. Ct. Docket Entry 44, at 1. The district court also imposed a twenty-four month term of supervised release, Dist. Ct. Docket Entry 46, at 4, and ordered that Mendiola, as special conditions of supervised release, “participate in and successfully complete a substance abuse treatment program ... [and] refrain from the use and possession [1035]*1035of alcohol and other forms of intoxicants,” Dist. Ct. Docket Entry 44, at 1.

On March 23, 2011, Mendiola’s supervising probation officer filed a second petition to revoke supervised release, alleging that on March 1, 2011, Mendiola submitted a urine sample that tested positive for methamphetamine. Dist. Ct. Docket Entry 47, at 1. An amended petition to revoke supervised release was filed on July 21, 2011. In that amended petition, Mendiola’s supervising probation officer alleged, as additional violations, that Mendiola had “failed to attend counseling, and [had failed to] submit to a random drug test.” Dist. Ct. Docket Entry 57, at 2.

On October 6, 2011, the district court held a hearing on the amended petition. Mendiola admitted the alleged violations. The district court imposed a twenty-four month term of imprisonment, double the upper limit of the recommended guideline range of six to twelve months, and recommended that Mendiola participate in a drug program while incarcerated. In doing so, the district court offered the following explanation to Mendiola for the length of the selected term of imprisonment:

It’s tough. I mean, I, you know, I have not been in your shoes, but I’ve been a judge a long time, and I know it’s a tough road. I mean, it’s not easy.
I don’t know what the answer is. But I know the answer is, in this particular case, I’m going to give you two years. The maximum.
And I’ll tell you why. You heard me say to the other person. I think if I gave anything less than that, number one, is you’d waste time in the County Jail somewhere. Two years, you know, if you want, you get in the Bureau of Prisons, that gives you enough time to have a program for people that have 24 months. Anybody that goes in less than 24 months, they don’t have a drug program, that’s a good one at least.
So it will be the sentence of the Court the Defendant be committed to the Bureau of Prisons for a period of 24 months. I will not order any supervised release after that because either he’ll be successful or he won’t.
I’m going to recommend a drug program at the Bureau of Prisons so that they know that that’s my concern.

ROA, Vol. 3, at 6.

Mendiola’s counsel and the district court then engaged in the following colloquy:

[DEFENSE COUNSEL]: Mr. Mendiola has pointed out that, although very appreciative of the recommendation of course of the 500 hours drug and alcohol program, because he recognizes that he has a problem that he needs to deal with.
The problem is that the underlying offense, your Honor, was I believe a felon in possession of ammunition.
THE COURT: Felon in possession.
[DEFENSE COUNSEL]: And because of the firearm related offense, he’s not going to be eligible for the 500 hour program.
He gets into the program, your Hon- or, the problem is that of course he doesn’t receive any time off or reduction from his sentence because of the underlying offense.
THE COURT: Yeah. He won’t get any time off, but he’ll have an opportunity to take the program. I think that’s worth it.
I mean, in terms of my sentencing philosophy and trying to get rehabilitation for him. He won’t get any time off because of the — I understand, because of the firearm, but he’s only doing 24 months anyhow. And I shouldn’t say [1036]*1036anyhow. It’s a lot of time, and he’s doing it, not me.
But in my estimation, the drag treatment program is going to help him more than anything. I’ve seen it. I, you know, and I’ve seen the results of those programs. And, I don’t know — I’ve never seen one out west here, but as I say, I spent many hours in seeing those programs, and I’ve seen the results.

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Cite This Page — Counsel Stack

Bluebook (online)
696 F.3d 1033, 2012 WL 4841278, 2012 U.S. App. LEXIS 21209, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-mendiola-ca10-2012.