                                                                            FILED
                            NOT FOR PUBLICATION                              NOV 18 2011

                                                                        MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                        U .S. C O U R T OF APPE ALS




                            FOR THE NINTH CIRCUIT



 UNITED STATES OF AMERICA,                             No. 10-50461

              Plaintiff-Appellee,                      D.C. No. 306-cr- 01156-GT-1

      v.
                                                       MEMORANDUM *
 MARIO HERNANDEZ-SERVERA,

              Defendant-Appellant.



                   Appeal from the United States District Court
                      for the Southern District of California
                  Gordon Thompson, Jr., District Judge, Presiding

                          Submitted November 16, 2011 **
                              Pasadena, California

Before:      W. FLETCHER and RAWLINSON, Circuit Judges, and MILLS,
             Senior District Judge***



  *
       This disposition is not appropriate for publication and may not be cited to or
by the courts of this circuit except as may be provided by Ninth Circuit Rule 36-3.
  **
     The panel unanimously finds this case suitable for decision without oral
argument. See Fed. R. App. P. 34(a)(2).
  ***
     The Honorable Richard Mills, Senior District Judge for the Central District of
Illinois, sitting by designation.

                                         -1-
      Defendant-Appellant Mario Hernandez-Servera (“Hernandez ”) appeals the

district court’s judgment revoking his supervised release and denying his motion

challenging the constitutionality of the supervised release statute, 18 U.S.C. §

3583. Hernandez argues that 18 U.S.C. § 3583(e) is facially unconstitutional

because it permits judges to find supervised release violations by a preponderance

of the evidence instead of requiring a jury determination of proof beyond a

reasonable doubt. Because supervised release revocation and criminal contempt

share a similar purpose, similar elements, and similar underlying policy concerns,

Hernandez contends that supervised release revocation is, at essence, the same as

criminal contempt, and thus subject to the same due process requirements

applicable to criminal contempt prosecutions.

      “Supervised release is an integral part of the federal sentencing structure,

similar in purpose and scope to its predecessor, parole.” United States v.

Huerta-Pimental, 445 F.3d 1220, 1222 (9th Cir. 2006). The United States

Supreme Court has held that parole revocation hearings are not equivalent to

criminal prosecutions, and due process does not require parole violations to be

found by a jury or proven beyond a reasonable doubt. Morrissey v. Brewer, 408

U.S. 471, 483-485, 489 (1972). The same constitutional analysis applies to parole,

probation, and supervised release. United States v. Hall, 419 F.3d 980, 985 n.4


                                         -2-
(9th Cir. 2005). The district court correctly denied Hernandez’s constitutional

challenge to § 3583.

      Hernandez also argues that the district court violated Apprendi v. New

Jersey, 530 U.S. 465 (2000), by imposing a six-month revocation sentence after he

had already served the maximum term of imprisonment specified in the substantive

statute of conviction, 8 U.S.C. § 1325. This Court has previously held “that § 3583

authorizes the revocation of supervised release even where the resulting

incarceration, when combined with the period of time the defendant has already

served for his substantive offense, will exceed the maximum incarceration

permissible under the substantive statute.” United States v. Purvis, 940 F.2d 1276,

1279 (9th Cir. 1991). Supervised release is not additional punishment and

Apprendi is not implicated when a judge imposes a period of supervised release to

follow a term of imprisonment because the maximum sentence prescribed by

statute for qualifying offenses is the maximum term of imprisonment under the

substantive statute of conviction plus a term of supervised release that is added

to—rather than substituted for a portion of—the term of imprisonment. United

States v. Liero, 298 F.3d 1175, 1178 (9th Cir. 2002); see also Huerta-Pimental,

445 F.3d at 1223.

      AFFIRMED.


                                         -3-
