                                                                        F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                      UNITED STATES CO URT O F APPEALS
                                                                        June 26, 2007
                                   TENTH CIRCUIT                     Elisabeth A. Shumaker
                                                                         Clerk of Court

 U N ITED STA TES O F A M ER ICA,

          Plaintiff - Appellee,
                                                          No. 06-2231
 v.                                                   (D.C. No. CR-96-663)
                                                            (D .N.M .)
 R OY A LLEN PA CH EC O,

          Defendant - Appellant.



                              OR D ER AND JUDGM ENT *


Before KELLY, A ND ER SO N, and HENRY, Circuit Judges.


      Defendant-Appellant Roy Allen Pacheco appeals from the sentence

imposed for violation of his supervised release. The district court sentenced him

to twenty-four months’ imprisonment followed by a five-year term of supervised

release. Our jurisdiction arises under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a),

and because the sentence is beyond the statutory maximum, we remand with

instructions to vacate the sentence and resentence.




      *
        This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. It may be cited,
however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th
Cir. R. 32.1.
                                    Background

      On February 12, 1997, M r. Pacheco was convicted of one count of

aggravated sexual abuse of a child in Indian C ounty. See 18 U.S.C. §§ 2241(a) &

2246(2)(A). Shortly thereafter, the district court sentenced him to 108 months’

imprisonment to be followed by three years of supervised release. As a standard

condition of M r. Pacheco’s supervised release, he was to have no contact with any

children under the age of sixteen. M r. Pacheco commenced supervised release on

September 12, 2005.

      On July 6, 2006, a federal probation officer filed a petition for revocation

of supervised release. The petition alleged that M r. Pacheco had violated a

condition of his supervised release by spending time alone with children under the

age of sixteen. On August 2, 2006, the district court held a violation hearing, at

which both the government and M r. Pacheco called several witnesses to testify.

The district court determined that M r. Pacheco violated the pertinent condition

and imposed a sentence of twenty-four months’ imprisonment and five years’

supervised release.

      On appeal, M r. Pacheco argues that the district court (1) committed plain

error in imposing a sentence in excess of the statutory maximum, and (2) imposed

an unreasonable sentence of twenty-four months’ imprisonment. We agree with

the first point and need not reach the second.




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                                       Discussion

      Because M r. Pacheco waited until appeal to challenge the legality of his

sentence on the ground that it exceeds the statutory maximum sentence, we

review only for plain error. United States v. Lopez-Flores, 444 F.3d 1218, 1221

(10th Cir. 2006). Under plain error analysis, M r. Pacheco must establish (1) an

error (2) that is plain (3) that affects his substantial rights, and (4) that seriously

affects the fairness, integrity, or public reputation of judicial proceedings. See

United States v. Olano, 507 U.S. 725, 732-34 (1993).

      The operable statutory provision, 18 U.S.C. § 3583(h), states:

      W hen a term of supervised release is revoked and the defendant is
      required to serve a term of imprisonment, the court may include a
      requirement that the defendant be placed on a term of supervised
      release after imprisonment. The length of such a term of supervised
      release shall not exceed the term of supervised release authorized by
      statute for the offense that resulted in the original term of supervised
      release, less any term of imprisonment that was imposed upon
      revocation of supervised release.

Due to the fact that the crime for which M r. Pacheco was originally convicted—

sexual abuse of a minor— was a class A felony, see 18 U.S.C. § 3559(a)(1); 18

U.S.C. § 2241(a), the maximum term of supervised release authorized by statute

for that offense was five years, see 18 U.S.C. § 3583(b)(1). Thus, the maximum

term of supervised release that could be imposed for M r. Pacheco’s violation was

five years “less any term of imprisonment that was imposed upon revocation of

supervised release.” See id. at § 3583(h). Because the district court imposed a



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term of imprisonment of two years, the maximum allowable term of supervised

release was three years. The district court, however, imposed a term of

supervised release of five years— two years beyond the statutory maximum.

      The district court committed error that was plain. M oreover, a sentence

which exceeds the statutory maximum, and is therefore illegal, both affects a

defendant’s substantial rights and constitutes a miscarriage of justice. See United

States v. M oyer, 282 F.3d 1311, 1319 (10th Cir. 2002) (“Under our circuit

precedent, the imposition of an illegal sentence constitutes plain error even if the

sentence favors the defendant.”) (citing United States v. Zeigler, 19 F.3d 486, 494

(10th Cir. 1994)). Consequently, we remand to the district court so that it may

vacate the sentence and resentence M r. Pacheco consistent with 18 U.S.C. §

3583(h).

      Because we remand based on the imposition of an illegal sentence, we need

not reach the issue of whether the twenty-four month term of imprisonment was

reasonable. See United States v. Cano-Silva, 402 F.3d 1031, 1038-39 (10th Cir.

2005) (explaining that it is unnecessary to reach an additional argument as to why

a particular sentence is erroneous when there is another ground requiring that the

sentence be remanded). W hile we harbor no doubt that, in light of the district

court’s factual findings, see 2 R. (Tr. 8/2/2006) at 134-35, 144-45, the twenty-

four month term of imprisonment was “reasoned and reasonable,” see United

States v. Tedford, 405 F.3d 1159, 1161 (10th Cir. 2005); United States v. Lee,

                                         -4-
957 F.2d 770, 774 (10th Cir. 1992), the district court is free on remand to impose

whatever combination of imprisonment and supervised release it now deems

appropriate, so long as the total term of punishment (imprisonment combined with

supervised release) does not exceed five years.

      REM ANDED with instructions to vacate M r. Pacheco’s sentence and

resentence.




                                       Entered for the Court


                                       Paul J. Kelly, Jr.
                                       Circuit Judge




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