UNITED STATES v. RAUL ORTUÑO-HIGAREDA

421 F.3d 917 UNITED STATES of America, Plaintiff-Appellee, v. Raul ORTUÑO-HIGAREDA, Defendant-Appellant. No. 04-10257. United States Court of Appeals, Ninth Circuit. Argued and Submitted February 7, 2005. Filed August 26, 2005. Francisco León, Tucson, AZ, for defendant-appellant, Raul Ortuño-Higareda. Nathan D. Leonardo, Assistant United States Attorney, Tucson, AZ, for plaintiff-appellee, United States of America. Appeal from the United States District Court for the District of Arizona, John M. Roll, District Judge, Presiding. D.C. No. CR-00-00786-1-JMR. Before WALLACE, RAWLINSON, and BYBEE, Circuit Judges. OPINION WALLACE, Senior Circuit Judge. 1 Raul Ortuño-Higareda (Ortuño) appeals from the district court's judgment revoking his term of supervised release and sentencing him to a twenty-four month term of imprisonment. We have jurisdiction over this timely appeal pursuant to 28 U.S.C. § 1291 . The questions before us are (1) whether the district court had jurisdiction to revoke Ortuño's supervised release term when revocation occurred before expiration of the term, and (2) whether supervised release was properly revoked when the government did…

Raul Ortuño-Higareda (Ortuño) appeals from the district court’s judgment revoking his term of supervised release and sentencing him to a twenty-four month term of imprisonment. We have jurisdiction over this timely appeal pursuant to 28 U.S.C. § 1291 . The questions before us are (1) whether the district court had jurisdiction to revoke Ortuño’s supervised release term when revocation occurred before expiration of the term, and (2) whether supervised release was properly revoked when the government did not prove that Ortuño received notice of the supervised release condition that he was charged with violating.

I.

In 2000, Ortuño was charged in the United States District Court for the District of Arizona with illegally re-entering the United States after deportation, in violation of 8 U.S.C. § 1326 (a). Ortuño pled guilty and the district court sentenced Or-tuño to an eighteen-month term of imprisonment followed by thirty-six months of supervised release. The subsequently entered judgment of conviction required Or-tuño to comply with eighteen “standard conditions” of supervision, and two “special conditions.” The first standard condition (Standard Condition One)…

concurring in part and dissenting in part:

I concur in that portion of the opinion concluding that the district court had jurisdiction to revoke the supervised release term. I respectfully dissent, however, from that portion of the opinion concluding that Ortuño-Higareda was not adequately apprised of the standard condition that he “not commit another federal, state or local crime.” As the majority opinion acknowledges, we have ruled that notice of a supervised release condition is adequate if the defendant received actual notice of that condition. See United States v. Ortega-Brito, 311 F.3d 1136, 1138 (9th Cir.2002).

As the majority opinion noted, at the time of sentencing the district court advised the defendant of the imposition of

The majority opinion proposes to vacate the revocation because Ortuño was advised of Special Condition One, that he not “reenter the United States without legal authorization,” but was not advised of Standard Condition One, that he “not commit another federal, state or local crime.” The majority opinion reasons that because the revocation petition charged a violation of Standard Condition One and not Special Condition One, a violation of Standard…