                                                                              FILED
                                                                              AUG 15 2012
                           NOT FOR PUBLICATION
                                                                          MOLLY C. DWYER, CLERK
                                                                            U.S. COURT OF APPEALS

                    UNITED STATES COURT OF APPEALS

                           FOR THE NINTH CIRCUIT




UNITED STATES OF AMERICA,                         No. 11-10409

             Plaintiff-Appellee,                  D.C. No. 2:10-cr-01716-ROS-1

      v.                                          MEMORANDUM*

IAN JUAN CIPRIANO,

             Defendant-Appellant.



                    Appeal from United States District Court
                           for the District of Arizona
                 Roslyn O. Silver, Chief District Judge, Presiding

                           Submitted August 10, 2012**
                            San Francisco, California




      *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
      **
            The panel unanimously finds this case suitable for decision without
oral argument. Fed. R. App. P. 34(a)(2).
Before:      CALLAHAN and WATFORD, Circuit Judges, and SINGLETON,***
             Senior District Judge

      Ian Juan Cipriano (“Cipriano”) appeals his sentence of fourteen months’

imprisonment following his guilty plea to escape from custody in violation of 18

U.S.C. §§ 751(a) and 4082(a).1 We have jurisdiction to hear this appeal under 28

U.S.C. § 1291. See also United States v. Sadler, 480 F.3d 932, 941-42 (9th Cir.

2007) (holding that Federal Rule of Appellate Procedure 4(b)’s timeliness

requirements are nonjurisdictional). None of Cipriano’s arguments on appeal were

raised before the district court. We therefore review his claims for plain error.

United States v. Cannel, 517 F.3d 1172, 1176 (9th Cir. 2008).

      On appeal, Cipriano contends that his Sixth Amendment rights were violated

when the district court sentenced him for escape from custody without submitting

to a jury the question of whether the custody from which he escaped was “by virtue

of” his original kidnapping conviction or “by virtue of” his supervised release

violation. Specifically, Cipriano argues that the district court’s determination that

he was confined “by virtue of” his kidnapping conviction was a fact that increased

the penalty for his escape conviction beyond the prescribed maximum. He


      ***
             The Honorable James K. Singleton, Jr., Senior United States District
Judge for the District of Alaska, sitting by designation.
      1
              The parties are familiar with the facts, and we repeat them here only
as necessary to explain our decision.
                                          2
therefore claims that this question had to be submitted to a jury and proved beyond

a reasonable doubt under Apprendi v. New Jersey, 530 U.S. 466, 490 (2000).

      Cipriano’s argument is foreclosed by our decision in United States v.

Patterson, 230 F.3d 1168 (9th Cir. 2000). In Patterson, we considered the

Sentencing Guidelines’ provision that corresponds to 18 U.S.C. § 751(a) and held

that “when supervised release is imposed as part of a sentence and then revoked in

subsequent proceedings, the resulting confinement is ‘by virtue of’ the original

conviction.” Patterson, 230 F.3d at 1169. In light of this closely analogous

precedent, the district court did not plainly err in sentencing Cipriano.

      Cipriano also argues that his current escape conviction should be reversed

because the custody from which he escaped exceeded the limits established by

federal law and by the plea agreement in his kidnapping case. First, he argues that

the plea agreement gave him an absolute “right to release” on April 10, 2010,

notwithstanding any violation of the conditions of his supervised release. The plea

agreement is to the contrary. By signing it, Cipriano agreed that, “if I violate any

of the conditions of my probation/supervised release, my probabtion/supervised

release may be revoked and upon such revocation, notwithstanding any other

provision of this agreement, I may be required to serve a term of imprisonment or

my sentence may be otherwise altered.”



                                           3
      Second, Cipriano argues that, when the district court revoked his supervised

release and imposed an additional term of supervision, federal law entitled him to

credit for time already served on supervised release. This is not the law. “[I]f a

defendant repeatedly violates the conditions of supervised release, the court may

repeatedly impose new terms of supervised release without credit for time served

on supervised release.” United States v. Cade, 236 F.3d 463, 467 (9th Cir. 2000)

(citing 18 U.S.C. § 3583(e)(3), (h)). Accordingly, there was no plain error.

      AFFIRMED.




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