United States v. MacIel-vasquez

Mario Maciel-Vasquez (“Maciel”) appeals his sentence, which was imposed after his plea of guilty to one count of violation of 8 U.S.C. § 1326 . Maciel contends that his sentence is unreasonable under United States v. Booker, 543 U.S. 220 , 125 S.Ct. 738 , 160 L.Ed.2d 621 (2005), that 8 U.S.C. § 1326 is unconstitutional, and that the district court committed plain error when it imposed several conditions of supervised release.

First, we consider the alleged Booker error. 2 Maciel argues that his sentence of 36 months is unreasonable under Booker . Maciel concedes that the district court considered the statutory factors outlined in 18 U.S.C. § 3553 (a), and he does not allege that the district court erred in calculating the advisory Guidelines range. Maciel argues, nonetheless, that because the district court did not state why it imposed a sentence of 36 months rather than some other sentence, the district court treated the Guidelines sentence as a presumptive sentence, which he urges is impermissible under United States v. Zavala, 443 F.3d 1165 (9th Cir.2006).

We reject Maciel’s contention that the sentence was unreasonable. The district court did not give greater weight to the…

concurring in part and dissenting in part.

I respectfully disagree with the majority that the district court’s decision to impose a condition of supervised release authorizing the probation officer to require unlimited drug and alcohol testing outside of treatment did not constitute plain error that seriously affect the fairness, integrity, or public reputation of judicial proceedings. See United States v. Olano, 507 U.S. 725, 734-15 , 113 S.Ct. 1770, 1777-1784 , 123 L.Ed.2d 508 (1993).

It is “indisputable” that “the authority to define and fix the punishment for crime is legislative.” Ex parte United States, 242 U.S. 27, 42 , 37 S.Ct. 72 , 61 L.Ed. 129 (1916). There are no federal common law crimes. Liparota v. United States, 471 U.S. 419, 424 , 105 S.Ct. 2084 , 85 L.Ed.2d 434 (1985). Legislative action defines crimes and criminal procedure; therefore, a court has no power to impose a sentence in excess of statutory authority.' United States v. Doe, 53 F.3d 1081, 1083-84 (9th Cir.1995). It is Congress that “has the power to define criminal punishments without giving the courts any sentencing discretion.” Chapman v. United States, 500 U.S. 453, 467 , 111 S.Ct. 1919 , 114 L.Ed.2d…

458 F.3d 994 UNITED STATES of America, Plaintiff-Appellee, v. Mario MACIEL-VASQUEZ, Defendant-Appellant. No. 05-50524. United States Court of Appeals, Ninth Circuit. Submitted June 7, 2006 * . Filed August 16, 2006. Elizabeth A. Newman, Deputy Federal Public Defender, Los Angeles, CA, for defendant-appellant Mario Maciel-Vasquez. Sean K. Lokey, Assistant United States Attorney, Riverside, CA, for plaintiff-appellee United States of America. Appeal from the United States District Court for the Central District of California; George H. King, District Judge, Presiding. D.C. No. CR-04-00694-GHK. Before THOMAS and GOULD, Circuit Judges, and WILLIAM W. SCHWARZER, ** District Judge. GOULD, Circuit Judge. 1 Mario Maciel-Vasquez ("Maciel") appeals his sentence, which was imposed after his plea of guilty to one count of violation of 8 U.S.C. § 1326 . Maciel contends that his sentence is unreasonable under United States v. Booker, 543 U.S. 220 , 125 S.Ct. 738 , 160 L.Ed.2d 621 (2005), that 8 U.S.C. § 1326 is unconstitutional, and that the district court committed plain error when it imposed several conditions of supervised release. 1 2 First, we consider the alleged Booker error. 2…