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United States v. Mulero-Algarin

United States Court of Appeals, First Circuit

July 31, 2017

UNITED STATES OF AMERICA, Appellee,
v.
HECTOR MULERO-ALGARIN, Defendant, Appellant.

         APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO [Hon. Carmen Consuelo Cerezo, U.S. District Judge]

          Mauricio Hernández Arroyo and Law Offices of Mauricio Hernández Arroyo, Esq. on brief for appellant.

          Julia M. Meconiates, Assistant U.S. Attorney, Mariana E. Bauzá-Almonte, Assistant U.S. Attorney, Chief, Appellate Division, and Rosa Emilia Rodríguez-Vélez, United States Attorney, on brief for appellee.

          Before Torruella, Lynch, and Barron, Circuit Judges.

          LYNCH, Circuit Judge.

         While on supervised release following his serving a 135-month term of imprisonment for a 2002 conviction for a federal drug felony, Héctor Mulero-Algarín committed a second federal drug felony in 2014. In doing so, he committed two offenses: violation of the conditions of his supervised release and the new drug offense. Mulero-Algarín pled guilty and was sentenced for the new drug offense by a different district court judge than presided over his previous conviction and sentence. He was newly sentenced to 120 months' imprisonment for that drug offense.

         In a separate proceeding, held before the district court judge who had presided over the original 2002 drug case, Mulero-Algarín's term of supervised release was revoked and replaced with a 36-month prison sentence, to be served consecutively to the 120-month sentence imposed on him for the new drug offense. See 18 U.S.C. §§ 3583(e)(3), 3584(a). The court also stated that it would not impose a further term of supervised release upon Mulero-Algarín's release from that confinement. This appeal concerns only the revocation sentence.

         Mulero-Algarín does not dispute that he violated the conditions of his supervised release by committing the second drug crime or that revocation of his supervised release was warranted. He appeals only the district court's decision to impose his revocation sentence consecutively to, rather than concurrently with, his sentence for the second crime. He makes the factually incorrect argument that the court failed to consider his cooperation with the government as to his second drug crime as part of this claim.

         We hold that the district court committed no error. We affirm Mulero-Algarín's revocation sentence.

         I.

         On May 15, 2002, Mulero-Algarín pled guilty to possession of cocaine with intent to distribute, in violation of 21 U.S.C. § 841(a)(1), after he was caught piloting a speedboat with 1, 576 kilograms of cocaine on board. U.S. District Judge Carmen C. Cerezo sentenced him to 135 months' imprisonment, plus five years of supervised release. He served his term of imprisonment.

         Mulero-Algarín's supervised release term commenced on September 2, 2011, with an expiration date of September 1, 2016. On January 22, 2014, claiming he had "faithfully complied" with the conditions of his supervised release, [1] Mulero-Algarín moved for its early termination. The government opposed that motion, and Judge Cerezo denied it.

          On December 10, 2014, less than a year after requesting early termination of his supervised release, Mulero-Algarín was detained on board a speedboat, along with one other passenger, after fleeing from a U.S. Coast Guard vessel and throwing multiple packages overboard, one of which was found to contain approximately 30 kilograms of cocaine. Mulero-Algarín was charged with conspiring to possess cocaine with intent to distribute on board a vessel of the United States, see 46 U.S.C. §§ 70502(b), 70503(a)(1), 70504(b)(1), 70506(b), and knowingly failing to obey an order of a federal law enforcement officer to heave to a vessel of the United States, see 18 U.S.C. § 2237(a)(1). This new criminal case was assigned to U.S. District Judge Pedro A. Delgado-Hernández.

         On October 16, 2015, Mulero-Algarín pled guilty in the new drug case, and Judge Delgado-Hernández sentenced him to 120 months' imprisonment -- the applicable mandatory minimum -- plus five years of supervised release. Mulero-Algarín's plea agreement stipulated that, in the event that he was to be sentenced for violating the conditions of his original supervised release in a revocation proceeding before Judge Cerezo, he could request that his ...


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