United States Court of Appeals

For the First Circuit

No. 07-1050

UNITED STATES OF AMERICA,

Appellee,

v.

JOSE MARCANO,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF PUERTO RICO

[Hon. José Antonio Fusté, U.S. District Judge]

Before

Boudin, Chief Judge,

Lynch, Circuit Judge,

and Stahl, Senior Circuit Judge.

Ramon M. Gonzalez, by appointment of the court, was on brief

for appellant.

Rosa Emilia Rodriguez-Velez, United States Attorney, with whom

Nelson Pérez-Sosa and Mariana E. Bauzá-Almonte, Assistant United

States Attorneys, were on brief for appellee.

May 12, 2008
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Per Curiam. Jose Marcano pleaded guilty to one count of

aiding and abetting the receipt and possession of an illegally

modified firearm in violation of 26 U.S.C. §§ 5822 and 5845. On

August 29, 2002, the district court sentenced Marcano to a term of

thirty-three months' imprisonment, to be followed by three years of

supervised release. On October 6, 2006, following revocation

proceedings, the district court revoked Marcano's supervised

release and sentenced him to eighteen months' imprisonment to be

followed by one year of supervised release, during the first 180

days of which he was to be subject to limited home confinement.

Marcano appeals, contesting the legality of his sentence.

The conditions which a district court may attach to

supervised release are spelled out by 18 U.S.C. § 3583(d). Section

§ 3583(d), inter alia, permits a district court to prescribe "any

condition that is set forth as a discretionary condition of

probation in section 3563(b)(1) through (b)(10) and b(12) through

(b)(20)." Here, the district court chose to impose a condition of

release requiring Marcano to submit to home confinement pursuant to

§ 3563(b)(19).

Marcano contends that the plain language of § 3563(b)(19)

forbids its application where any term of incarceration is imposed.

See 18 U.S.C. § 3563(b)(19). Because he raises this issue for the

first time on appeal, we review only for plain error. See United

States v. Sanchez-Berrios, 424 F.3d 65, 81 (1st Cir. 2005)
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(applying plain error doctrine in reviewing conditions of

supervised release).

Section 3563(b)(19) provides that "a condition under this

paragraph may be imposed only as an alternative to incarceration."

18 U.S.C. § 3563(b)(19) (emphasis added). Thus, Marcano reasons

that the district court erred by imposing home confinement during

supervised release to follow his eighteen-month period of

incarceration. The Government, in essence, responds that Marcano's

interpretation is flawed because it ignores the effect of § 3583,

which deals exclusively with supervised release following

imprisonment, upon § 3563(b)(19). Because § 3583(d)(1)

specifically authorizes the condition of home confinement set forth

by § 3563(b)(19), and supervised release necessarily follows

incarceration, the Government argues that lower courts may order

home confinement beyond the maximum period of incarceration.

Even assuming arguendo that Congress intended home

confinement to be a substitute for incarceration, it does not

follow that Marcano's sentence is illegal. As Marcano concedes,

the district court was authorized to impose a maximum sentence of

up to two years' imprisonment. 18 U.S.C. § 3583(e)(3). The total

period of imprisonment, eighteen months, plus the ensuing period of

home confinement, 180 days, does not exceed the statutory maximum

term of imprisonment of two years. Thus, to afford Marcano relief,

we would have to conclude that the imposition of any period of
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incarceration pursuant to § 3583(e)(3) necessarily precludes any

home confinement during the ensuing period of supervised release.

The statutory text certainly surely does not compel such a reading,

and Marcano cites to no authority adopting this approach.

Indeed, in United States v. Ferguson, 369 F.3d 847 (5th

Cir. 2004), when faced with a nearly identical claim, the Fifth

Circuit determined that "a court [may] not impose both a term of

incarceration (upon revocation of supervised release) and

subsequent home detention during a reimposed term of supervised

release that, when combined, exceeds the allowable maximum

incarceration term." Id. at 851; accord United States v. Leaphart,

98 F.3d 41, 43 (2d Cir. 1996) (following similar approach under

sentencing guidelines); see also United States v. Roy, 506 F.3d 28,

31 (1st Cir. 2007) (holding that district court's failure to count

time spent during community confinement was not plain error).

Without explicitly reaching the issue, the Fifth Circuit's

reasoning in Ferguson strongly implies that a court may combine

incarceration and home confinement under § 3563(b)(19) provided

that the total period of incarceration plus home confinement during

supervised release does not exceed the statutory maximum that the

defendant may be incarcerated. 369 F.3d at 850-52.

In sum, Marcano has made a colorable argument that the

district court could not have imposed a period of incarceration and

supervised release involving home confinement in excess of two
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years, the statutory maximum. It did not do so. Marcano's real

argument, that a district court may not impose any period of home

detention following incarceration is tenuous at best, and he fails

to cite any applicable precedent. That which exists points the

other way. See id. At the every least, any error was not plain.

See United States v. Caraballo-Rodriguez, 480 F.3d 62, 70 (1st Cir.

2007) (holding that plain error cannot be found in case law absent

clear and binding precedent). Accordingly, we reject Marcano's

challenge to his sentence.

Affirmed.