United States v. Vasquez-Perez

The initial appearance provisions in Fed. R. Crim. P. 32.1, and the requirements therein, do not apply to a defendant already in custody for a separate offense when revocation proceedings begin; and, the procedural safeguards guaranteed by Boykin v. Alabama are not applicable in revocation proceedings.

Nicolas Vasquez-Perez was convicted in 2010 of unlawful reentry into the United States. He was serving a three-year term of supervised release following deportation. Vasquez-Perez was later arrested in August 2011 by border patrol agents for being in the U.S. illegally. Having violating 8 U.S.C. § 1326, Vasquez-Perez was charged with illegal reentry after deportation. The U.S. Probation Office revoked Vasquez-Perez’s supervised release in February 2012. An Arizona district court then took notice of the illegal reentry, and issued an arrest warrant relating to the supervised release matter. Vasquez-Perez made his initial appearance for the revocation matter on February 14, 2012. On August 9, 2012, Vasquez-Perez received sentence on the criminal charge of illegal reentry and the supervised-release-term violation. The court sentenced Vasquez-Perez to a 30-month term on the illegal reentry charge, and a 21-month term for the violation of his supervised release. On appeal, Vasquez-Perez only challenged the 21-month sentence. Vasquez-Perez first argued a violation of his due process rights because of insufficient notice of the alleged violation of his supervised release. At his February 14, 2012 initial appearance, the proceeding was orchestrated en masse, with many defendants. The magistrate judge asked collectively whether the parties waived the reading of allegations against defendants. The record noted simultaneous affirmative responses by various parties, but none explicitly tied to Vasquez-Perez’s counsel. Reasoning that an already-incarcerated-defendant-facing-revocation’s right to liberty protected by due process is not implicated, the Ninth Circuit held that the initial appearance provisions in Fed. R. Crim. P. 32.1, and the requirements therein, do not apply to a defendant already in custody for a separate offense when revocation proceedings begin. The panel also held that Vasquez-Perez was not improperly denied the procedural safeguards of Boykin v. Alabama, because such safeguards are not applicable in revocation proceedings. AFFIRMED.