                                                                                                                           Opinions of the United
2007 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


1-5-2007

USA v. Esperanza-Vasquez
Precedential or Non-Precedential: Non-Precedential

Docket No. 05-3179




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Recommended Citation
"USA v. Esperanza-Vasquez" (2007). 2007 Decisions. Paper 1812.
http://digitalcommons.law.villanova.edu/thirdcircuit_2007/1812


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                                                             NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT


                                   No. 05-3179


                         UNITED STATES OF AMERICA

                                         v.

                       MIGUEL A. ESPERANZA-VASQUEZ
                                          Appellant


           APPEAL FROM THE UNITED STATES DISTRICT COURT
               FOR THE DISTRICT OF THE VIRGIN ISLANDS
                        D.C. Crim. No. 97-cr-00012-01
                Chief Judge: The Honorable Raymond L. Finch


                    Submitted Under Third Circuit LAR 34.1(a)
                               December 7, 2006


            Before: McKEE, BARRY and STAPLETON, Circuit Judges


                          (Opinion Filed: January 5, 2007)


                                     OPINION




BARRY, Circuit Judge

     Miguel Esperanza-Vasquez (“Vasquez”) appeals from the revocation of his

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supervised release. Because we write only for the parties, who are already familiar with

the facts of this case, we will not restate those facts except as necessary for our analysis.

       Vasquez pled guilty to three counts of a 37-count indictment on May 28, 1997. On

October 28, 1997, he was sentenced, as relevant here, to 21 months imprisonment, five

years supervised release, and $144,455 in restitution to repay the individuals and

institutions he had defrauded. By order dated March 24, 2004, the District Court found

that Vasquez violated the terms of his supervised release by failing to make restitution,

and, at Vasquez’s request because “today he got a job,” SA 15, extended his term of

supervised release for five years and ordered monthly payments of $250. Failure to make

two consecutive payments shall, the Court ordered, result in the revocation of supervised

release. Not surprisingly, given Vasquez’s request for the extended term and consent to

its terms, no timely appeal was taken.

       While on supervised release, Vasquez was convicted in the Superior Court of the

Virgin Islands of committing another crime–obtaining money under false pretenses–and

was sentenced to five years imprisonment. At his supervised release revocation hearing,

Vasquez conceded the new conviction and did not challenge the revocation or the fact

that more than a year earlier, his supervised release had been extended at his request. By

order dated June 1, 2005, the District Court revoked supervised release and sentenced

Vasquez to a term of imprisonment of 21 months to be served consecutive to the sentence

imposed by the Superior Court of the Virgin Islands.



                                               2
       Vasquez does not argue that the revocation of supervised release was not

warranted, nor could he given the new criminal conviction. Rather, he argues that the

District Court committed plain error when it, “as a result of an agreement between the

parties, extended the probationary [sic] period of the appellant for a second period of five

(5) years after the maximum authorized term was previously imposed.” Appellant’s Br. at

4. We will affirm.1

                                              I.

       The District Court had jurisdiction under 48 U.S.C. § 1612. We have jurisdiction

over a final judgment of the District Court under 28 U.S.C. § 1291. While this appeal is

nominally taken from the order revoking his supervised release, in fact what Vasquez is

challenging is the two year-old order extending his supervised release, the very order he

requested. Assuming there is no impediment to this belated challenge, our review would

be for plain error. Fed. R. Crim. P. 52(b); United States v. Bernard, 373 F.3d 339, 341

(3d Cir. 2004). To establish plain error, a defendant must prove that the court erred, that

the error was obvious under the law, and that the error affected the substantial rights of

the defendant. Bernard, 373 F.3d at 341. The discretion to correct the error should only

be exercised where the error “seriously affects the fairness, integrity or public reputation

of judicial proceedings.” Id.; United States v. Cotton, 535 U.S. 625, 631-32 (2002).



   1
     We reject without further discussion Vasquez’s contention that because the District
Court mistakenly said the 1997 conviction occurred in 2004, “it considered in its sentence
of the appellant a conviction that did not exist.” Id.

                                              3
       As noted above, Vasquez argues that the District Court erred when it extended his

period of supervised release past the statutorily authorized term. Under 18 U.S.C. §

3583(b)(1), the maximum term of supervised release is five years. Section 3583(e)(2)

states that, to the extent that the maximum period was not imposed originally, supervised

release may only be extended to the maximum term authorized in subsection (b). Because

the District Court imposed a term of supervised release beyond the five year maximum,

we will assume that error was committed. The government concedes this point in their

brief. Appellee’s Br. at 10.

       Nonetheless, we will not allow Vasquez’s challenge to an order that he sought and

did not contest until he failed to conform to its terms. Judicial estoppel bars “playing fast

and loose with the courts.” Mintze v. American Fin. Servs, Inc. (In re Mintze), 434 F.3d

222, 232 (3d Cir. 2006) (quoting Scarano v. Cent. R. Co. of N.J., 203 F.2d 510, 513 (3d

Cir. 1953)). Three factors “typically inform the decision of whether to apply” judicial

estoppel in a particular case, New Hampshire v. Maine, 532 U.S. 742, 750-51 (2000), i.e.

whether the party’s position in the course of litigation is “clearly inconsistent[,]” whether

a court adopted the earlier position such that acceptance of the later position would

“create the perception that either . . . court was misled,” id. at 750 (internal quotes and

citations omitted), and whether the party asserting the “inconsistent position would derive

an unfair advantage or impose an unfair detriment on the opposing party if not estopped.”




                                               4
Id. at 751. Here, all three factors weigh in favor of imposing judicial estoppel. Vasquez

will be bound by the extension of supervised release he asked for and received.

      The order of the District Court will be affirmed.




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