     Case: 09-41216 Document: 00511282078 Page: 1 Date Filed: 11/02/2010




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                 FILED
                                                                          November 2, 2010

                                       No. 09-41216                         Lyle W. Cayce
                                                                                 Clerk

UNITED STATES OF AMERICA,

                                                   Plaintiff-Appellee
v.

JOSE ZABALA-MOLINA,

                                                   Defendant-Appellant




                   Appeal from the United States District Court
                        for the Southern District of Texas
                            USDC No. 2:09-CR-1001-1


Before DeMOSS, BENAVIDES, and ELROD, Circuit Judges.
PER CURIAM:*
       Jose Zabala-Molina appeals the district court’s revocation of his term of
supervised release. He argues that the district court did not have the authority
to either revoke the term of supervised release or modify the original sentence.
Because our precedent precludes the modification of an original sentence in a
revocation proceeding, we REVERSE.




       *
         Pursuant to 5TH CIR . R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .
R. 47.5.4.
    Case: 09-41216 Document: 00511282078 Page: 2 Date Filed: 11/02/2010



                                  No. 09-41216

      I.    BACKGROUND
      In 2001 in the Western District of Texas, Jose Zabala-Molina (Zabala) was
found guilty of failure to appear for sentencing in a drug-trafficking case and
was sentenced to 24 months in prison and three years of supervised release. The
sentencing court ordered that Zabala’s sentence of imprisonment and term of
supervised release run consecutively to the concurrent 97-month terms of prison
and three-year terms of supervised release imposed on the two counts in the
drug-trafficking case. The court stated specifically that “[t]he five years [of]
supervised release in the marijuana case and three years of supervised release
in the failure-to-appear case will run consecutively, for a total of eight years.”
This Court dismissed as frivolous Zabala’s appeal from the failure-to-appear
judgment upon his retained attorney’s motion to withdraw pursuant to Anders
v. California, 386 U.S. 738 (1967). United States v. Zabala-Molina, 65 F. App’x
508 (5th Cir. 2003).
      Jurisdiction over the cases was transferred to the Southern District of
Texas in 2009. In December 2009, the Government filed a petition to revoke the
three terms of supervised release imposed in the failure-to-appear and the drug-
trafficking cases, based on a new illegal-reentry conviction. The Government
asserted that Zabala had begun to serve his terms of supervised release on
December 28, 2008.
      At the revocation hearing, Zabala’s counsel questioned whether the
failure-to-appear term of supervised release was ripe for revocation because it
had been ordered to run consecutively to the concurrent five-year terms in the
drug-trafficking case, which had not yet expired. The judge explained that, even
though the failure-to-appear judgment stated that the term of supervised release
was to run consecutively to the terms in the drug-trafficking case, “[y]ou can’t
have a supervised release consecutive . . . [a]nd it only makes sense that the
supervised release from the 2000 [failure-to-appear] case is concurrent with the

                                        2
     Case: 09-41216 Document: 00511282078 Page: 3 Date Filed: 11/02/2010



                                       No. 09-41216

other case.” Counsel and the probation officer agreed with the district court that
Zabala was serving three different terms of supervised release.
       Zabala pleaded true to violating the conditions of supervised release by
committing the 2009 illegal-reentry offense. The court revoked all three terms
of supervised release and sentenced Zabala to seven months in prison in the
failure-to-appear case, to run consecutively to the concurrent seven-month terms
in prison on both counts in the drug-trafficking case, and to be followed by 29
months of supervised release in the failure-to-appear case and 53 months of
supervised release in the drug-trafficking case. The court also sentenced Zabala
to 70 months in prison in the illegal-reentry case, to be followed by three years
of supervised release. Zabala filed a timely notice of appeal.
       II.     ANALYSIS
       Zabala argues that the district court did not have jurisdiction to modify the
original judgment in the failure-to-appear case by interpreting it as imposing a
concurrent, rather than consecutive, term of supervised release or to revoke the
consecutive term of supervised release that had not yet begun to run.1 He
argues that the revocation of the term of supervised release in the
failure-to-appear case and resulting sentence should be vacated.                        The
Government agrees that the revocation and sentence should be vacated.
However, the Government also asks this Court to remand the case to the
Southern District of Texas and instruct that the case be returned to the Western
District of Texas so that the district court can amend the judgment by imposing
concurrent terms of supervised release.
       Although this Court typically reviews the district court’s decision to revoke
supervised release for abuse of discretion, United States v. Grandlund, 71 F.3d
507, 509 (5th Cir. 1995), it reviews de novo a district court’s jurisdiction to

       1
           Zabala is not appealing the revocation of the drug-trafficking terms of supervised
release.

                                              3
     Case: 09-41216 Document: 00511282078 Page: 4 Date Filed: 11/02/2010



                                      No. 09-41216

revoke supervised release, United States v. Molina-Gazca, 571 F.3d 470, 472 (5th
Cir. 2009).
       The supervised release statute states that a “term of supervised release
commences on the day the person is released from imprisonment and runs
concurrently with any Federal, State, or local term of probation or supervised
release or parole for another offense to which the person is subject or becomes
subject during the term of supervised release.” 18 U.S.C. § 3624(e).2 This Court
has interpreted § 3624(e) as mandating that a prisoner’s “supervised release
term must run concurrently to any other supervision to which he is subject.”
United States v. Hernandez-Guevara, 162 F.3d 863, 877 (5th Cir. 1998). “Even
when federal law requires consecutive terms of imprisonment, the supervised
release term ‘is to run concurrently with any other term of supervised release
imposed.’” Id. (quoting U.S.S.G. § 5G1.2, cmt. n.2(C)).
       The parties agree that the consecutive term of supervised release imposed
in the failure-to-appear case was an illegal sentence. They also agree that, even
if illegal, the sentence cannot be challenged or modified in a revocation
proceeding.     The parties are correct. “It is by now well-established that a
defendant may not use the appeal of a revocation of supervised release to
challenge an underlying conviction or original sentence.” United States v. Willis,



       2
         The failure-to-appear statute mandates that the term of imprisonment—not the term
of supervised release—for that offense shall be consecutive to the sentence of imprisonment
for any other offense. 18 U.S.C. § 3146(b)(2). The general sentencing statute provides that:

       The court, in imposing a sentence to a term of imprisonment for a felony or a
       misdemeanor, may include as a part of the sentence a requirement that the
       defendant be placed on a term of supervised release after imprisonment, except
       that the court shall include as a part of the sentence a requirement that the
       defendant be placed on a term of supervised release if such a term is required
       by statute. . . .

18 U.S.C.A. § 3583(a). However, neither statute addresses whether terms of supervised
release may be imposed to run consecutively.

                                             4
     Case: 09-41216 Document: 00511282078 Page: 5 Date Filed: 11/02/2010



                                      No. 09-41216

563 F.3d 168, 170 (5th Cir. 2009); accord United States v. Hinson, 429 F.3d 114,
116 (5th Cir. 2005) (“Hinson may not, however, use an appeal of the revocation
of her supervised release to attack her original sentence directly or collaterally
in this proceeding.”); United States v. Moody, 277 F.3d 719, 721 (5th Cir. 2001)
(“Moody has never challenged the language of her indictment or the drug
quantity used in calculating her original sentence, either by direct appeal or
collateral review. She may not now use her new term of supervised release as a
vehicle to do so.”).3
       District courts are authorized to modify previously imposed sentences only
in limited circumstances, see 18 U.S.C. § 3582(c), none of which were present in
Zabala’s revocation proceeding. Willis, Hinson, and Moody dictate that the
district court was bound by the original, albeit illegal, consecutive term of
supervised release.
       Additionally, as previously set forth, the Government asks this Court to
remand and instruct the district court to transfer the failure-to-appear case back
to the Western District with further instructions to amend the judgment and
impose the term of supervised release to run concurrently with the supervised
release imposed in the drug-trafficking case. The Government cites no authority
that allows this procedure. Moreover, our precedent provides that a revocation
proceeding is not the proper vehicle in which to challenge the original sentence.
Thus, granting the Government’s request would contravene our precedent.
       III.   CONCLUSION
       Accordingly, the judgment of revocation with respect to the term of
supervised release on the failure-to-appear case is REVERSED.                           The




       3
         We note that in cases on direct appeal, this Court has modified or vacated judgments
imposing consecutive terms of supervised release. See United States v. Myers, 104 F.3d 76, 81
(5th Cir. 1997) (vacating and remanding for resentencing).

                                             5
    Case: 09-41216 Document: 00511282078 Page: 6 Date Filed: 11/02/2010



                                No. 09-41216

Government’s request for remand is DENIED. Our ruling does not affect the
revocations of the terms of supervised release on the two drug convictions.




                                      6
