08-4354-cr
USA v. Barrios


                           UNITED STATES COURT OF APPEALS
                               FOR THE SECOND CIRCUIT

                                     SUMMARY ORDER

RULINGS BY SUM M ARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A
SUM M ARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERM ITTED AND IS GOVERNED BY
FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN
CITING A SUM M ARY O RDER IN A DOCUM ENT FILED W ITH THIS COURT, A PARTY M UST CITE
EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (W ITH THE NOTATION
“SUM M ARY ORDER”). A PARTY CITING A SUM M ARY ORDER M UST SERVE A COPY OF IT ON ANY
PARTY NOT REPRESENTED BY COUNSEL.


       At a stated term of the United States Court of Appeals for the Second Circuit, held at the
Daniel Patrick Moynihan Courthouse, 500 Pearl Street, in the City of New York, on the 9th day of
March, two thousand ten.

Present:
            ROBERT A. KATZMANN,
            REENA RAGGI,
                        Circuit Judges,
            JOHN G. KOELTL,
                        District Judge.*
________________________________________________

UNITED STATES OF AMERICA,

              Appellee,


                      v.                                           No. 08-4354-cr

RAFAEL BARRIOS,

              Defendant-Appellant.

________________________________________________

For Defendant-Appellant:             TINA SCHNEIDER , Portland, ME


       *
        The Honorable John G. Koeltl, United States District Judge for the Southern District of
New York, sitting by designation.
For Appellee:                         DAVID A. O’NEIL, Assistant to the Solicitor General
                                      (Katherine Polk Failla, Assistant United States Attorney, on
                                      the brief) for Preet Bharara, United States Attorney for the
                                      Southern District of New York, New York, NY



        Appeal from the United States District Court for the Southern District of New York
(Patterson, J.).

       ON CONSIDERATION WHEREOF, it is hereby ORDERED, ADJUDGED, and

DECREED that the judgment of the district court is AFFIRMED in part, VACATED in part,

and REMANDED.

       Defendant-Appellant Rafael Barrios was convicted following a jury trial of possession

with intent to distribute cocaine, and possessing a firearm in furtherance of, and carrying the

firearm during and in relation to, a drug trafficking crime. He was sentenced to 83 months’

imprisonment, followed by two terms of three years’ supervised release to run consecutively. On

appeal, Barrios argues that the district court’s judgment should be reversed because the district

court (Cote, J.) wrongly denied his motion to suppress the fruits of the inventory search of his

vehicle that yielded the cocaine. We assume the parties’ familiarity with the facts and procedural

history of the case.

       Barrios argues that the impoundment of his vehicle, which preceded the inventory search,

violated the Fourth Amendment because vehicle impoundments under the police community

caretaking function must be made pursuant to standardized procedures and there is no evidence

that standardized procedures were followed in this case. Because Barrios did not make this

argument to the district court, we review his claim for plain error. See Fed. R. Crim. P. 52(b);

United States v. Olano, 507 U.S. 725, 731-32 (1993). Under plain error review, we may notice


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an error only if it is plain and affects the substantial rights of the defendant. Olano, 507 U.S. at

732. “An error is plain if the ruling was contrary to law that was clearly established by the time

of the appeal.” United States v. Polouizzi, 564 F.3d 142, 156 (2d Cir. 2009) (internal quotation

marks omitted). We conclude that even if there were error here, a question we do not reach, it

would not be plain because the law of this Court does not clearly establish that vehicle

impoundments under the police community caretaking function must be made pursuant to

standardized procedures. Indeed, there is a split among the circuits on this question, and this

Court has not yet addressed it. Compare United States v. Proctor, 489 F.3d 1348, 1354 (D.C.

Cir. 2007) (requiring standardized procedures to be followed), United States v. Petty, 367 F.3d

1009, 1012 (8th Cir. 2004) (same), and United States v. Duguay, 93 F.3d 346, 351 (7th Cir.

1996) (same), with United States v. Smith, 522 F.3d 305, 312 (3d Cir. 2008) (declining to require

standardized procedures), and United States v. Coccia, 446 F.3d 233, 239 (1st Cir. 2006) (same).

Accordingly, we affirm Barrios’s conviction.

       Barrios was sentenced to two terms of three years’ supervised release to run consecutively

following his term of imprisonment. By statute, “[t]he 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 during the term of supervised release.” 18 U.S.C. § 3624(e) (emphasis added). The

parties agree that this was plain error, although Barrios had not initially raised it. We therefore

remand his case to the district court for the sole purpose of entering a corrected judgment

specifying that the two terms of supervised release are to run concurrently. See 18 U.S.C. §

3742(f)(1).


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       For the foregoing reasons, Barrios’s conviction is AFFIRMED; Barrios’s sentence is

VACATED insofar as it requires him to serve two terms of supervised release consecutively;

and we remand for resentencing. Judgment AFFIRMED in part, VACATED in part, and

REMANDED.

                                           FOR THE COURT:
                                           CATHERINE O’HAGAN WOLFE, CLERK




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