Argued and Submitted December 8, 2014, San Francisco, California
As Amended October 29, 2015.
Appeal from the United States District Court for the Eastern District of California. D.C. No. 1:08-cr-00067-LJO-2. Lawrence J. O'Neill, District Judge, Presiding.
Affirming a two-year sentence imposed following violations of supervised release, the panel held that Fed. R. Crim. P. 35 was not intended to deprive the district court of jurisdiction to alter a sentence during the course of the same hearing.
The panel held that a sentence is not final--and Rule 35(a) does not apply--when there is no formal break in the proceedings from which to logically and reasonably conclude that sentencing had finished; that the district court's initial twelve-month-and-a-day sentence was not a binding sentence within the meaning of Rule 35; and that neither 18 U.S.C. § 3582(c) nor Rule 35 deprived the district court of jurisdiction to alter the defendant's sentence due to the defendant's apparently disrespectful conduct during the ongoing sentencing hearing.
Dissenting, Chief District Judge Navarro wrote that the majority's ruling, defying the unambiguous language of Rule 35 and the express limitation of § 3582(c), upholds the draconian decision of the sentencing court to suddenly double the term of incarceration initially pronounced based solely on a perception that the defendant was laughing at the court.
Carlton F. Gunn, Pasadena, California, for Defendant-Appellant.
Benjamin B. Wagner, United States Attorney, Camil A. Skipper, Appellate Chief, and Karen A. Escobar (argued), Assistant United States Attorney, Fresno, California, for Plaintiff-Appellee.
Before: Johnnie B. Rawlinson and Mary H. Murguia, Circuit Judges, and Gloria M. Navarro, Chief District Judge.[*]
Johnnie B. Rawlinson, Circuit Judge:
Appellant Ramon Ochoa (Ochoa) challenges the two-year sentence imposed following violations of his supervised release conditions. Ochoa specifically contends that the district court erred in increasing his sentence to the two-year statutory maximum based on Ochoa's apparently disrespectful conduct after the district court imposed a sentence of twelve months and a day. Ochoa maintains that the district court lacked jurisdiction to increase
an already imposed sentence. We do not agree.
Ochoa was originally indicted for being a felon in possession of firearms and ammunition and for conspiracy to distribute marijuana. Ochoa pled guilty to the felon in possession of firearms and ammunition charge and was sentenced to seventy months' imprisonment and a thirty-six month period of supervised release.
While Ochoa was still subject to supervised release, the probation office pursued revocation based on Ochoa's failure to participate in a residential reentry center program as directed. The probation officer had modified Ochoa's conditions of supervision to include a 180-day stay at the reentry center " due to what [Ochoa] described as an unstable living situation at his parent's home . . ." However, Ochoa " demonstrated argumentative and disrespectful behavior towards the [reentry center] staff [,] . . . failed to follow staff directives, and while [the probation] officer attempted to speak to [Ochoa] regarding his behavior and placement, [Ochoa] was argumentative and disrespectful and stated he was going to 'walk away' from the program, without permission." In further support of revocation, the probation officer delineated that Ochoa had a prior history of violating reentry center policies, including testing positive for synthetic cannabis use, possession of a small knife, and abusive behavior towards reentry center staff.
Because Ochoa's supervised release violation was a Grade C violation, the corresponding guidelines sentencing range was seven to thirteen months' imprisonment. The probation officer recommended that the district court impose a sentence of twelve months and a day imprisonment. The government agreed with the recommended sentence.
During the revocation proceeding, the district court determined that the applicable statutory maximum was two years' imprisonment and that the sentencing guidelines range was seven to thirteen months' imprisonment. The district court initially observed that the recommended sentence of twelve months and a day was " way too low" considering Ochoa's blatant disrespect for staff at the reentry center and for his probation officer. Ochoa responded that he did not intend to be disrespectful and apologized for his behavior. The district court then stated to Ochoa:
You are disrespectful. You think you can do and say anything you want to say just simply because you disagree.
That's not acceptable. You think that you are on the same level and the same par with people who are responsible to get you on the right track, and you are wrong there too.
You think that the fact that committing a crime and then having rules to follow as a result of it shouldn't be that important to you, and you are wrong there too.
You just have this idea that you can do whatever you want and you are just dead wrong. And I can tell you that no matter what I do here, you are going to be back in the system because you have an attitude that absolutely tells everybody on the face of the planet that you know more than ...