United States Court of Appeals

For the Eighth Circuit

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No. 13-3756

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United States of America

lllllllllllllllllllll Plaintiff - Appellee

v.

Raymon Ortega

lllllllllllllllllllll Defendant - Appellant

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 Appeal from United States District Court 

for the Western District of Missouri - Springfield

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 Submitted: August 20, 2014

Filed: August 26, 2014

[Unpublished]

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Before MURPHY, BOWMAN, and BENTON, Circuit Judges.

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PER CURIAM.

In this appeal following revocation of his supervised release, Raymon Ortega

challenges his revocation sentence and raises related arguments. His counsel has

moved to withdraw. Having carefully reviewed the record before us and the
arguments for reversal, and for the reasons discussed below, we affirm the judgment

of the district court.1

Ortega argues that the revocation sentence is unreasonable and exceeds the

statutory maximum. We review a revocation sentence for abuse of discretion, see

United States v. Miller, 557 F.3d 910, 915-16 (8th Cir. 2009), and the legality of a

revocation sentence de novo, see United States v. Hergott, 562 F.3d 968, 970 (8thCir.

2009). The district court imposed concurrent revocation sentences of 33 months in

prison, and no additional supervised release, upon revoking the supervised release

that Ortega wasserving for five felony convictions. The revocation sentences on four

ofthe counts were within the statutory limits applicable to revocation sentences under

18 U.S.C. § 3583(e)(3); the sentences were not substantively unreasonable; and they

were adequately explained. See United States v. Thunder, 553 F.3d 605, 608 (8th

Cir. 2009) (court need not mechanically list every § 3553(a) consideration when

sentencing upon revocation of supervised release). And contrary to his contention,

Ortega was not entitled to credit for time spent in a residential reentry center as part

of his supervised release. See U.S.S.G. § 7B1.5(b) (upon revocation of supervised

release, no credit is given toward imprisonment ordered for time previously served

on post-release supervision). 

One of the felonies for which Ortega was serving supervised release is a Class

C felony, for which a defendant may not be required to serve a revocation sentence

of more than two yearsin prison, see 18 U.S.C. § 3583(e)(3), but Ortega did not lodge

any objection below, and his substantial rights are not affected, because he properly

received concurrent revocation sentences of 33 months in prison on the other four

counts. Cf. United States v. Bossany, 678 F.3d 603, 606-07 (8th Cir. 2012) (where

defendant contended for first time on appeal that sentence for conspiracy offense

The Honorable Gary A. Fenner, United States District Judge for the Western 1

District of Missouri.

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exceeded statutory maximum, review was for plain error, under which error is

corrected only if it is plain, affects substantial rights, and seriously affects fairness,

integrity, or public reputation of judicial proceedings; error was plain but did not

affect defendant’s substantial rights because court imposed identical, statutorily

authorized sentence for money-laundering offense).

Next, we note that Ortega raises various challenges to his original convictions

and sentences, but a criminal defendant may not collaterally attack the validity of his

underlying convictions or sentences in an appeal from a sentence imposed upon

revocation ofsupervised release. See Miller, 557 F.3d at 913. Ortega also complains

about the effectiveness of the legal assistance that he received in these revocation

proceedings, but the issue was not developed below, and generally ineffectiveassistance claims are more appropriately considered in a 28 U.S.C. § 2255

proceeding. See United States v. McAdory, 501 F.3d 868, 872-73 (8th Cir. 2007). 

Finally, Ortega directs our attention to upcoming Guidelines amendments that he

believes will lower his base offense level, but those amendments do not help him in

this appeal.

Accordingly, we affirm the judgment of the district court, and we grant

counsel’s motion to withdraw, subject to counsel informing appellant about

procedures for seeking rehearing or filing a petition for certiorari.

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