United States v. Ian Cipriano

MEMORANDUM

Ian Juan Cipriano (“Cipriano”) appeals his sentence of fourteen months’ imprisonment following his guilty plea to escape from custody in violation of 18 U.S.C. §§ 751 (a) and 4082(a). We have jurisdiction to hear this appeal under 28 U.S.C. § 1291 . See also United States v. Sadler, 480 F.3d 932, 941-42 (9th Cir.2007) (holding that Federal Rule of Appellate Procedure 4(b)’s timeliness requirements are nonjurisdictional). None of Cipriano’s arguments on appeal were raised before the district court. We therefore review his claims for plain error. United States v. Cannel, 517 F.3d 1172, 1176 (9th Cir.2008).

On appeal, Cipriano contends that his Sixth Amendment rights were violated when the district court sentenced him for escape from custody without submitting to a jury the question of whether the custody from which he escaped was “by virtue of’ his original kidnapping conviction or “by virtue of’ his supervised release violation. Specifically, Cipriano argues that the district court’s determination that he was confined “by virtue of’ his kidnapping conviction was a fact that increased the penalty for his escape conviction beyond the prescribed maximum. He therefore…