Opinion
This panel unanimously finds this case suitable for decision without oral argument. See Fed. R.App. P. 34(a)(2).
NOT FOR PUBLICATION. (See Federal Rule of Appellate Procedure Rule 36-3)
Appeal from the United States District Court for the Central District of California, George H. King, District Judge, Presiding.
Before TROTT, THOMAS, and WARDLAW, Circuit Judges.
This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as may be provided by Ninth Circuit Rule 36-3.
Defendant-Appellant Cenobio Humberto Herrera Lanz appeals the 36-month sentence the district court imposed upon the revocation of Lanz's supervised release.
I
Subsequent to the imposition of sentence in this case, we decided United States v. Olabanji, 268 F.3d 636, 638-39 (9th Cir.2001) (holding that a district court that has rejected the range suggested by the policy statement must then consider the guideline sentencing range applicable to the underlying offense when sentencing for a revocation of probation). In Olabanji, we read 18 U.S.C. § 3565, the statutory basis for revocation of probation, in conjunction with 18 U.S.C. § 3553, in particular § 3553(b). 268 F.3d at 638-39. This subsection provides in part that when there is no applicable sentencing guideline, "the court shall also have due regard for the relationship of the sentence imposed to sentences prescribed by guidelines applicable to similar offenses." We held that a violation of probation is "similar" to the underlying offense and therefore the guideline range applicable to the underlying offense must be considered. Id. at 639.
Olabanji directly concerned revocation of probation, rather than revocation of supervised release. However, the statutory provision at issue in Olabanji - § 3553(b) - applies equally to revocation of both probation and supervised release. See, e.g., United States v. Musa, 220 F.3d 1096, 1101 (9th Cir.), cert. denied, 531 U.S. 999, 121 S.Ct. 498, 148 L.Ed.2d 469 (2000). Thus, remand is required so that the district
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court may consider the impact, if any, of Olabanji on the term of Lanz's sentence.
II
Lanz argues that he was sentenced in excess of the statutory maximum. He is mistaken. The maximum sentence which may be imposed under 18 U.S.C. § 3583(e)(3) is 36 months, which was the sentence Lanz received.
Based on this erroneous premise, Lanz also contends that his attorney ineffectively assisted him by neglecting to raise this argument. Because the sentence was not in excess of the statutory maximum, his claim of ineffective assistance of counsel concomitantly fails.
Lanz's claim that he was exposed to an ex post facto sentence fails because the relevant statutory provisions have been in effect since before Lanz committed the underlying offense.
We have carefully considered all of the other arguments raised by Lanz on appeal, and we have determined that none of them has merit.
REVERSED AND REMANDED FOR RE-SENTENCING.