United States v. Froy Serrato-Cesareo

MEMORANDUM

1. The district court did not plainly err by delaying Froy Serrato-Cesareo’s revocation sentencing. Federal Rule of Criminal Procedure 32.1 “‘primarily’ governs ... post-revocation sentencing[s].” United States v. Whitlock, 639 F.3d 935 , 940 (9th Cir.2011). Rule 32.1(b)(2) requires “the court [to] hold the revocation hearing within a reasonable time.” Here, any violation of Rule 32.1’s timeliness requirement was not “clear” or “obvious” under current law. See United States v. Olano, 507 U.S. 725, 734 , 113 S.Ct. 1770 , 123 L.Ed.2d 508 (1993). Given Whitlock , even if United States v. Carper, 24 F.3d 1157 (9th Cir.1994), suggests application of Rule 32, application of Rule 32.1’s reasonableness standard would not constitute plain error.

Any violation of Serrato-Cesareo’s due process right to a prompt hearing is not “plain,” because it is not “clear” or “obvious” under current law that the delay was unreasonable. See Olano, 507 U.S. at 734 , 113 S.Ct. 1770 . “[0]ur cases considering due process claims for revocation proceedings have held that relief is not called for unless there was both unreasonable delay and prejudice.” United States v. Santana, 526 F.3d 1257, 1260…