FOR PUBLICATION

    UNITED STATES COURT OF APPEALS
         FOR THE NINTH CIRCUIT

 UNITED STATES OF AMERICA,                       No. 13-50386
             Plaintiff-Appellee,
                                                  D.C. No.
                   v.                       3:11-cr-03560-LAB-1

 FIDEL CASTRO-VERDUGO,
          Defendant-Appellant.                      OPINION


         Appeal from the United States District Court
           for the Southern District of California
          Larry A. Burns, District Judge, Presiding

                   Argued and Submitted
             March 7, 2014—Pasadena, California

                         Filed May 6, 2014

   Before: Alex Kozinski, Chief Judge, Susan P. Graber,
   Circuit Judge, and Charles R. Breyer,* Senior District
                          Judge.

                    Opinion by Judge Graber;
                    Dissent by Judge Breyer




  *
    The Honorable Charles R. Breyer, Senior United States District Judge
for the Northern District of California, sitting by designation.
2            UNITED STATES V. CASTRO-VERDUGO

                           SUMMARY**


                           Criminal Law

    The panel affirmed the district court’s 2013 revocation of
probation and the sentence imposed upon revocation, in a
case in which the district court’s 2011 imposition of the
underlying probation was defective.

    The panel rejected the defendant’s contention that
because of the defect in the underlying sentence, the district
court in 2013 lacked jurisdiction under 18 U.S.C. § 3565(a)
to revoke the probation. The panel held that because the
defendant never moved to correct the 2011 sentence under
28 U.S.C. § 2255, and the term imposed had not expired, he
was still serving a term of probation when he violated the
conditions of his probation, thus satisfying the criteria to
create jurisdiction under § 3565(a).

    The panel held that the district court committed no
procedural error in imposing a term of supervised release in
connection with the 2013 probation violation, where the
district court, in applying U.S.S.G. § 5D1.1, noted facts
specific to the defendant’s case that suggested the advisability
of an added measure of deterrence. The panel also held that
the imposition of supervised release was not substantively
unreasonable.

   Dissenting, District Judge Breyer wrote that he cannot
concur in an opinion that upholds clear error.

  **
     This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
           UNITED STATES V. CASTRO-VERDUGO                   3


                         COUNSEL

Matthew W. Pritchard (argued), Federal Defenders of San
Diego, Inc., San Diego, California, for Defendant-Appellant.

Steven Lee (argued), Special Assistant United States
Attorney; Laura E. Duffy, United States Attorney; Bruce R.
Castetter, Assistant United States Attorney, Chief, Appellant
Section Criminal Division, San Diego, California, for
Plaintiff-Appellee.


                         OPINION

GRABER, Circuit Judge:

    Defendant Fidel Castro-Verdugo was convicted of illegal
reentry in 2011. At sentencing, the district court imposed a
period of probation along with a stayed custodial sentence,
thereby exceeding the court’s authority under 18 U.S.C.
§ 3561(a)(3). In 2013, Defendant again was convicted of
illegal reentry which, in addition to constituting a new crime,
violated the conditions of his 2011 sentence of probation. On
appeal from the probation revocation proceedings, Defendant
argues that the district court in 2013 lacked jurisdiction
because of the defect in the underlying 2011 sentence.
Because Defendant never moved to correct the underlying
sentence under 28 U.S.C. § 2255, he was in fact still serving
a term of probation at the time of the new offense, so the
district court in 2013 properly assumed jurisdiction under
18 U.S.C. § 3565(a). We therefore affirm.
4          UNITED STATES V. CASTRO-VERDUGO

       FACTUAL AND PROCEDURAL HISTORY

    Defendant is a Mexican citizen and national. In 2011, he
pleaded guilty to illegal reentry, in violation of 8 U.S.C.
§ 1326. He was sentenced to six months’ imprisonment and
a five-year term of probation. The imposition of probation
along with a custodial sentence was improper under
18 U.S.C. § 3561(a)(3), which precludes probation for a
defendant who is sentenced to a term of imprisonment for the
same offense. United States v. Forbes, 

, 676
(9th Cir. 1999). Although the sentence imposed was clearly
erroneous and Defendant was represented by counsel,
Defendant did not move to vacate, amend, or correct the
sentence.

    Among the conditions of Defendant’s 2011 probation
were requirements that he (1) not violate any federal, state, or
local laws and (2) not reenter the United States illegally. The
court noted that Defendant had no criminal history but that he
had already been removed, and told not to reenter illegally,
about 30 times. As a condition of the plea agreement,
Defendant waived the right to appeal or collaterally attack the
court’s judgment, except for a collateral attack predicated on
ineffective assistance of counsel.         The court stayed
Defendant’s custodial sentence, and he was removed.

    In 2013, Defendant again pleaded guilty to illegal reentry,
in violation of 8 U.S.C. § 1326. The district court sentenced
Defendant to six months’ imprisonment and three years’
supervised release for the new offense. As part of his plea
agreement, Defendant again waived the right to appeal or
collaterally attack the conviction or sentence, except for a
collateral attack predicated on ineffective assistance of
counsel.
           UNITED STATES V. CASTRO-VERDUGO                    5

    The United States Probation Office petitioned the court
for a warrant to revoke probation in connection with
Defendant’s violation of his 2011 probation agreement. At
the probation revocation proceedings, Defendant objected to
the 2013 district court’s jurisdiction on the ground that the
2011 imposition of probation was improper under 

. The district court concluded that it had
jurisdiction to revoke Defendant’s probation. The court did
so and sentenced Defendant to a prison term of six months
and one day, to run consecutively with his term of
imprisonment for the new offense, plus one year of
supervised release, to run concurrently with the term of
supervised release for the new offense. Defendant timely
appeals the probation revocation and associated sentence.

                STANDARDS OF REVIEW

    We review de novo the district court’s assumption of
jurisdiction over probation revocation proceedings. United
States v. Daly, 

, 599–600 (9th Cir. 1988). If
jurisdiction was proper, we review for abuse of discretion the
district court’s sentence of supervised release. United States
v. Daniels, 

, 924 (9th Cir. 2008).

                        DISCUSSION

A. The District Court Had Jurisdiction to Revoke
   Probation.

    Defendant argues that the district court lacked jurisdiction
to revoke his probation in 2013 because, when the district
court imposed probation in 2011, it did so in conjunction with
a sentence of imprisonment, which it lacked authority to do
under 18 U.S.C. § 3561(a)(3). 

. As
6          UNITED STATES V. CASTRO-VERDUGO

an initial matter, the now-conceded defect in the 2011
sentence, although clear error, was not jurisdictional.
“[J]urisdiction means today . . . the courts’ statutory or
constitutional power to adjudicate the case.” United States v.
Cotton, 

, 630 (2002) (internal quotation marks
omitted). The district court in 2011 had jurisdiction over
Defendant’s federal offense under 18 U.S.C. § 3231. It had
authority to impose a sentence following his conviction under
18 U.S.C. § 3551 but exceeded its statutory authority under
18 U.S.C. § 3561 by imposing probation along with a
custodial sentence. A sentence imposed by a court that lacks
jurisdiction and an excessive sentence are two different
grounds for post-conviction relief. See, e.g., Hitchcock v.
United States, 

, 965 (9th Cir. 1978)
(enumerating the four distinct grounds for relief under
28 U.S.C. § 2255). “[A] rule should not be referred to as
jurisdictional unless it governs a court’s . . . subject-matter or
personal jurisdiction . . . even if important and mandatory
. . . .” Henderson ex rel. Henderson v. Shinseki, 

, 1202 (2011) (citations omitted).

    But regardless of the nature of the underlying error, the
validity of the 2011 sentence is not properly before us. “An
appeal challenging a probation revocation proceeding is not
the proper avenue through which to attack the validity of the
original sentence.” United States v. Gerace, 

,
1295 (9th Cir. 1993); see also United States v. Simmons,

, 563 (9th Cir. 1987) (“[A]n appeal from a
probation revocation is not the proper avenue for a collateral
attack on the underlying conviction.”). Gerace controls. As
here, the defendant in Gerace argued on an appeal from a
probation revocation proceeding that there were legal defects
             UNITED STATES V. CASTRO-VERDUGO                             7

in the imposition of the original sentence of probation.1 We
held that we could not reach the merits of the defendant’s
argument, because any challenge to the underlying conviction
should be brought as a 28 U.S.C. § 2255 petition. See

. This holding is consistent with the
rule from other circuits that have addressed the question. See
United States v. Lewis, 

, 395 (6th Cir. 2007);
United States v. Almand, 

, 317–18 (11th Cir.
1993); Atehortua v. Kindt, 

, 128–29 (7th Cir.
1991); United States v. Francischine, 

, 828 (5th
Cir. 1975). And, as we discuss in more detail below, the rule
is required by 28 U.S.C. § 2255.

    Defendant argues that he is not attacking the original
2011 sentence, but is instead challenging the jurisdiction of
the district court in 2013 to conduct a probation revocation

   1
     In Gerace, the defendant used an appeal from a 1992 probation
revocation proceeding, in which a stay of his five-year suspended sentence
was lifted, to challenge the underlying 1989 sentence, which had been
imposed as part of a plea 

. One of his two
arguments was that the district court had erred in 1989 when it modified
the sentence that had been proposed as part of the underlying plea
agreement. 

term of imprisonment imposed in 1992
stemmed from the defendant’s 1989 modified sentence and, on appeal
from the 1992 probation revocation proceedings, we held that we could
not reach the portion of the defendant’s argument that concerned the
alleged error in the 1989 sentencing. 

Gerace, like
Simmons, stands for the simple proposition that we cannot reopen the
underlying proceedings at which probation originally was imposed when
the subject before us is probation revocation. This rule is so well settled
and grounded in the text of 28 U.S.C. § 2255 that we generally apply it in
a single sentence of a memorandum disposition. See, e.g., United States
v. Juda, 510 F. App’x 564, 565 (9th Cir.), cert. denied, 

(2013); United States v. Estrada, 360 F. App’x 880, 881 (9th Cir. 2009);
United States v. Christensen, 356 F. App’x 965, 965 (9th Cir. 2009)
(unpublished decisions).
8          UNITED STATES V. CASTRO-VERDUGO

hearing. Because he was not serving a “valid” term of
probation at the time of the probation revocation hearing,
Defendant reasons, the district court lacked jurisdiction under
18 U.S.C. § 3565(a) to revoke his probation. But Defendant
was serving a term of probation at the time of the probation
revocation proceedings, albeit one imposed in error. He is
attacking the validity of the original sentence, which must be
done in a § 2255 petition, not in a probation revocation
proceeding. 

. Indeed, our holding
in Gerace recognizes that an underlying sentence may not
always be valid, but that a court tasked with conducting or
reviewing probation revocation proceedings may not
investigate the validity of the original sentence. Id.; see also

(“[A] court should consider the
petition for probation revocation as if the underlying
conviction was unquestioned.”).

    In short, the only criteria necessary to create jurisdiction
over probation revocation proceedings are (1) that the
defendant still be serving a term of probation and (2) that the
defendant violate its conditions.          Under 18 U.S.C.
§ 3565(a)(2), “[i]f the defendant violates a condition of
probation at any time prior to the expiration or termination of
the term of probation, the court may . . . revoke the sentence
of probation and resentence the defendant.” Because
Defendant had not moved to vacate, correct, or amend his
2011 sentence under 28 U.S.C. § 2255, and the term imposed
had not expired, he was still serving a term of probation when
he violated the conditions of his probation, thus satisfying the
criteria to create jurisdiction in 2013.

    Nothing in the two cases that Defendant cites, United
States v. Schmidt, 

(9th Cir. 1996), overruled on
other grounds by United States v. Palomba, 

,
           UNITED STATES V. CASTRO-VERDUGO                   9

1123 (9th Cir. 1999), and United States v. Vargas-Amaya,

(9th Cir. 2004), suggests that Gerace does not
control here. Schmidt and Vargas-Amaya considered for how
long a district court retains jurisdiction to conduct probation
revocation or parole revocation hearings, respectively. Title
18 U.S.C. § 3565(a) gives the district court authority to
continue or revoke probation “at any time prior to the
expiration or termination of the term of probation,” while
18 U.S.C. § 3565(c) allows the court to retain jurisdiction
after the term of probation expires for “any period reasonably
necessary for . . . adjudication” so long as the warrant or
summons was issued before the term expired. Consistent
with that statutory text, 

, held that a
district court that issued a summons during a defendant’s
term of probation retained jurisdiction over probation
revocation proceedings even after that term expired.
Similarly, 

–07, held that,
under 18 U.S.C. § 3583 (the analogous statute governing
parole revocation proceedings), the district court lacked
jurisdiction because it had failed to issue a warrant or
summons before the defendant’s term of parole expired.

    We have consistently recognized that an appeal from a
probation revocation or parole revocation proceeding is the
proper way to challenge the timing of that revocation
proceeding—an issue completely independent from the
validity of the underlying sentence (and an issue that
necessarily could not have been appealed in a prior
proceeding). See, e.g., United States v. Morales-Isabarras,

(9th Cir. 2014) (considering, on appeal from a
supervised release revocation proceeding, what delays are
“reasonably necessary” to adjudication under 18 U.S.C.
§ 3583(i)); United States v. Grant, 

, 931–33 (9th
Cir. 2013) (considering, on appeal from a probation
10           UNITED STATES V. CASTRO-VERDUGO

revocation proceeding, the circumstances that toll probation
for the purposes of 18 U.S.C. § 3565(c)). Those cases do not
change our clear rule that the validity of an underlying
sentence of probation must be challenged under 28 U.S.C.
§ 2255. 

.

    As a three-judge panel, we are bound by Gerace. United
States v. Orm Hieng, 

, 1139 (9th Cir.), cert.
denied, 

(2012). We also are convinced that it
was correctly decided. The statute, 28 U.S.C. § 2255,
outlines procedures for challenging the validity of a sentence
that a district court “was without jurisdiction to impose . . . or
that . . . was in excess of the maximum authorized by law.”

The petitioner must first move the court that
“imposed the sentence to vacate, set aside or correct” the
verdict. 

court finds that the judgment was
rendered without jurisdiction, or that the sentence imposed
was not authorized by law,” the court then has a number of
options, including setting the judgment aside, resentencing
the prisoner, or correcting the sentence. 

The
statute “confers upon the district court broad and flexible
power in its actions following a successful § 2255 motion.”
United States v. Handa, 

, 691 (9th Cir. 1997)
(internal quotation marks omitted). Had a § 2255 motion
been brought before the district court, it could have corrected
the sentence.2 But the collateral challenge that Defendant

 2
    The dissent argues that such a motion would have been doomed to fail,
because it would have been brought before the same district court that
continued to insist on the lawfulness of the 2011 sentence. Dissent at 19.
Had the district court been presented with a § 2255 petition and a cogent,
well-argued explanation of the problem, we are inclined to take a less
cynical view and think that the court would have been willing to correct
its mistake. In any event, had the district court denied a timely § 2255
petition, Defendant could have appealed to this court from a posture that
             UNITED STATES V. CASTRO-VERDUGO                11

seeks to bring in this appeal would circumvent the statutorily
defined procedure.

    Allowing a collateral attack on the underlying sentence of
probation in an appeal from a probation revocation
proceeding would also thwart Congress’ statute of limitations
for correcting a sentence. Under 28 U.S.C. § 2255(f)(1), a
petitioner has one year from “the date on which the judgment
of conviction becomes final” to bring a motion under § 2255.
Were we to entertain a challenge to a 2011 sentence via a
collateral attack initiated in 2013, not only would we be
ignoring the procedures outlined in § 2255, but we also would
be defeating the statute of limitations that Congress imposed.

    In short, Congress has told us in § 2255 both how and
when we may entertain a challenge to a sentence that was
imposed in excess of statutory authority. The dissent’s policy
arguments fail to identify an alternate source of authority
pursuant to which we may rule on the validity of the
underlying sentence. The dissent argues that the legal
avenues available to Defendant were impractical, and that he
lacked incentive to petition for relief in a timely fashion.
Dissent at 19–23. But § 2255’s time bar is the incentive.
Collateral consequences are not always apparent
immediately—indeed, in many cases, as in Defendant’s, they
become meaningful only upon a later conviction. But after
the one-year statute of limitations has passed, we may
consider a § 2255 motion to vacate, set aside, or correct a
sentence only if the petitioner establishes eligibility for
equitable tolling by showing “‘(1) that he has been pursuing
his rights diligently, and (2) that some extraordinary
circumstance stood in his way and prevented timely filing.’”


allowed us to consider the validity of the 2011 sentence.
12           UNITED STATES V. CASTRO-VERDUGO

United States v. Buckles, 

, 889 (9th Cir. 2011)
(quoting Holland v. Florida, 

, 649 (2010)).3

     We do not have a freestanding mandate to fix every
mistake that we see. For example, we may not consider an
asylum applicant’s claim, however compelling, that is not
first exhausted before the Board of Immigration Appeals.
Barron v. Ashcroft, 

, 677–78 (9th Cir. 2004).
We lack jurisdiction over any appeal, no matter how strong
the merits, that is untimely filed. Bowles v. Russell, 

, 213 (2007). And we may not use an appeal from a
probation revocation proceeding to reach back in time and
revisit Defendant’s underlying sentence of probation, in
contravention of the procedures set by Congress under
§ 2255.

    However much we may agree that the 2011 sentence was
imposed in error and that Defendant’s 2011 counsel should
have moved to correct it promptly, Defendant in fact was still
serving a term of probation in 2013. The district court in
2013 therefore had jurisdiction under 18 U.S.C. § 3565(a).

B. The District Court Did Not Abuse Its Discretion in
   Imposing a Term of Supervised Release.

    In the alternative, Defendant challenges the imposition of
a term of supervised release in connection with his 2013
probation violation. “On appeal, we first consider whether


  3
    We express no opinion as to whether Defendant could still bring a
claim for ineffective assistance of counsel or some other claim, and
whether equitable tolling would apply to such a claim on account of
factors such as those described by the dissent, because those questions are
not before us.
              UNITED STATES V. CASTRO-VERDUGO                          13

the district court committed significant procedural error, then
we consider the substantive reasonableness of the sentence.”
United States v. Carty, 

, 993 (9th Cir. 2008) (en
banc).

    The district court committed no procedural error. In
applying United States Sentencing Guideline § 5D1.1,4 the
district court noted two facts specific to Defendant’s case that
suggested the advisability of an added measure of deterrence:
(1) Defendant’s high number of prior reentries; and (2) the
fact that Defendant had promised the district court during the
prior proceeding that he would not reenter again, but then he
reentered anyway. Nor did the district court commit
procedural error in considering the relevant sentencing
factors. “The district court need not tick off each of the


 4
     Guideline § 5D1.1(c) reads:

              The court ordinarily should not impose a term of
          supervised release in a case in which supervised release
          is not required by statute and the defendant is a
          deportable alien who likely will be deported after
          imprisonment.

              Application note 5 to the Guideline explains:

               Application of Subsection(c) — . . . . If such a
          defendant illegally returns to the United States, the need
          to afford adequate deterrence and protect the public
          ordinarily is adequately served by a new prosecution.
          The court should, however, consider imposing a term of
          supervised release on such a defendant if the court
          determines it would provide an added measure of
          deterrence and protection based on the facts and
          circumstances of a particular case.

U.S.S.G. § 5D1.1(c), cmt. n.5.
14         UNITED STATES V. CASTRO-VERDUGO

§ 3553(a) factors to show that it has considered them.”

. The record reflects that the district
court considered Defendant’s arguments and evidence.

. For example, the district court
specifically noted that Defendant did not have a criminal
record apart from his repeated illegal reentries. Because the
district court understood its discretion and considered the
specific facts of the case, there is no procedural error. 

–95.

    Finally, the imposition of supervised release was not
substantively unreasonable. We have upheld as substantively
reasonable terms of supervised release for other defendants
who were to be removed at the end of their custodial
sentence. See, e.g., United States v. Valdavinos-Torres,

, 692–93 (9th Cir. 2012) (upholding as
reasonable a sentence of supervised release for a removable
defendant where the facts of the case supported the district
court’s conclusion that an added measure of deterrence was
necessary), cert. denied, 

(U.S. Apr. 21,
2014) (No. 13-7521). Where, as here, “the district court
considered the specific facts presented by this case and . . . its
sentence was consistent with its assessment of these facts,”
we find no substantive unreasonableness. United States v.
Apodaca, 

, 1082 (9th Cir. 2011).

     AFFIRMED.



BREYER, Senior District Judge, dissenting:

   Today the majority affirms an illegal sentence while
acknowledging that “the sentence imposed was clearly
             UNITED STATES V. CASTRO-VERDUGO                           15

erroneous,” Majority Op. at 4, and offers no practical remedy
to correct the wrong. I cannot concur in an opinion that
upholds clear error, and therefore respectfully dissent.

    There is no disagreement that the district court’s 2011
sentence of probation coupled with imprisonment was
erroneous. This Court has held that such a sentence is illegal,
as it exceeds the statutory authority granted by Congress.
18 U.S.C. § 3561(a)(3); United States v. Forbes, 

, 676 (9th Cir. 1999). Nor is there an issue as to whether
the Defendant lawfully waived a challenge to an illegal
sentence at the time of his plea. Again, this Court has wisely
held, along with many of its sister circuits, that appellate
courts must reject such a waiver if to enforce it would result
in the affirmance of an illegal sentence. See United States v.
Bibler, 

, 624 (9th Cir. 2007).1

    So then what is the rationale supporting an affirmance in
this case? The majority relies on two cases discussing
remedies, and then offers a wrongly sentenced defendant two
options, neither of which make sense.

 1
    See also United States v. Andis, 

, 891–92 (8th Cir. 2003)
(“[A] defendant has the right to appeal an illegal sentence, even though
there exists an otherwise valid waiver.”); United States v. Thornbury,

, 539 (4th Cir. 2012) (“We have indeed used the term
‘illegal’ to describe sentences the appeal of which survive an appellate
waiver, but we have done so only where the sentence is alleged to have
been beyond the authority of the district court to impose.”); United States
v. Teeter, 

, 25 & n.10 (1st Cir. 2001) (holding that courts
should refuse to honor the waiver if the district court plainly errs in
sentencing); United States v. Polly, 

, 1001 (10th Cir. 2011)
(stating that a waiver would be enforced unless it would result in “a
miscarriage of justice”); United States v. Soon Dong Han, 

(N.D. Cal. 2002) (Breyer, J.) (discussing problems with prospective,
open-ended waivers).
16          UNITED STATES V. CASTRO-VERDUGO

    As an initial matter, the majority is correct that the district
court had jurisdiction over the Defendant for purposes of a
motion to revoke probation. However, that there was
jurisdiction misses the point: the district court clearly
exceeded its statutory authority on two occasions. First, the
district court erred by imposing an illegal term of probation
in 2011. Second, the district court erred in 2013 by revoking
probation and thereupon imposing a sentence of confinement.
The Defendant appeals here from the district court’s second
error. That the district court had jurisdiction does not correct
the plain error committed in 2011 and again in 2013. Plain
error is for a reviewing court to correct, but apparently not
here.

    The majority contends that the appellate remedy chosen
by the Defendant is barred by controlling Ninth Circuit
precedent, and cites United States v. Gerace, 

(9th Cir. 1993), and United States v. Simmons, 

(9th Cir. 1987), to that effect. Majority Op. at 6–7. Neither
case is on point.

    Both Gerace and Simmons involved collateral attacks on
underlying convictions based on factors wholly outside the
scope of probation revocation proceedings. Neither case
involved a claim of lack of statutory authority like the one
here. In Gerace, the appeal did not challenge the district
court’s imposition or revocation of probation. Rather, as the
very first sentence of that opinion makes clear, “Gerace
argue[d] that he [wa]s entitled to a new sentencing hearing or
to withdraw his plea of guilty because the government
breached a plea agreement.” 

.
Here, Defendant seeks neither a new sentence nor to
withdraw his plea; he simply challenges the authority of the
district court to revoke his illegally imposed probation.
             UNITED STATES V. CASTRO-VERDUGO                           17

    To the extent Gerace establishes the broad holding that
“[a]n appeal challenging a probation revocation proceeding
is not the proper avenue through which to attack the validity
of the original sentence,” 

(citing 

), it does so relying entirely on Simmons.
Simmons, like Gerace, considered an appeal seeking to
withdraw a guilty plea. See 

(“Simmons challenges the guilty plea which led to
probation.”). The holding in Simmons on which Gerace
relies is clear: “an appeal from a probation revocation is not
the proper avenue for a collateral attack on the underlying
conviction.” 

opinion in Gerace recited the
holding more broadly as “[a]n appeal challenging a probation
revocation proceeding is not the proper avenue through which
to attack the validity of the original sentence” is of no
moment in light of the facts of those cases.2 It bears
repeating: both Simmons and Gerace considered an appeal
seeking to withdraw a guilty plea.3 Here, Defendant seeks no


   2
     Nor are the out-of-circuit cases the majority cites on this point
persuasive. None of the cases involved either (1) the defendant’s removal
from the country, or (2) a clearly erroneous sentence. Moreover, illegal
reentry cases present unique circumstances which inform defense
counsel’s judgment as to whether the harm of an illegal sentence is
speculative as it depends on a future event, and when appellate review is
appropriate in light of the potential for additional time in custody.
   3
     The language the majority relies on from Gerace, unsurprisingly,
comes from the section of the opinion discussing Gerace’s contention that
the district court judge, in changing Gerace’s sentence, violated Rule 11’s
prohibition against court participation in plea negotiations. Gerace’s
argument on appeal was that the court’s participation rendered the plea
agreement invalid, thereby rendering his conviction invalid. In that sense,
because Gerace was challenging the validity of his conviction, the court
appropriately relied on Simmons. Here, Defendant is explicitly not
challenging the validity of his conviction, nor could he. His conviction
18           UNITED STATES V. CASTRO-VERDUGO

such thing.    There is no dispute that the imposition of a
term of probation and a term of imprisonment violated
18 U.S.C. § 3561(a)(3). Faced with a clearly erroneous
sentence, the majority suggests that Defendant should have
“moved to correct the underlying sentence under 28 U.S.C.
§ 2255” or that defense counsel should have “move[d] to
vacate, amend, or correct the [2011] sentence.” Majority Op.
at 3–4. These two proposed remedies ignore the realities of
this case.

    Defendant was an alien who had conceded his
removability as part of the 2011 plea agreement. Defendant’s
2011 custodial sentence was for two months time served with
the remainder of a six month sentence stayed. This means
that Defendant would have been released from custody and
transferred to immigration custody immediately after
sentencing on September 19, 2011. The time Defendant
spent in immigration custody would have been
extraordinarily brief.4 For example, the median time spent by
defendants in immigration custody prior to a removal in Fall
of 2012 (including people who did not concede removability)
was 10 days, with 40 percent of aliens spending three days or
less in immigration detention prior to their removal.5 See
TRAC Immigration, Legal Noncitizens Receive Longest
ICE Detention (2013), available at http://trac.syr.edu/


was valid, but his sentence was not.
  4
   In fact, although not part of the record on review before this Court,
immigration records confirm that Defendant was removed from the
country on September 20, 2011.
  5
   In 2013, for example, Defendant was released from federal criminal
custody on January 27, 2014 and removed from the country by
immigration enforcement on the same day.
           UNITED STATES V. CASTRO-VERDUGO                    19

immigration/reports/321/ (compiling data from the U.S.
Immigration and Customs Enforcement agency’s removal
statistics available at http://www.ice.gov/removal-statistics/
index.htm).

    The majority suggests that the Defendant could have filed
a petition for habeas corpus relief under 28 U.S.C. § 2255 or
that he could have moved to correct his sentence, presumably
under Fed. R. Crim. Proc. 35. Majority Op. at 3–4. These
remedies are impractical for three related reasons: (1) futility;
(2) timeliness; and (3) mootness. First, it would have been
futile to file a Rule 35 motion to correct the sentence or a
habeas petition under § 2255 with the same “court which
imposed the sentence.” 28 U.S.C. § 2255(a). Even if
Defendant had filed a Rule 35 motion or a § 2255 petition,
the district court almost certainly would have denied relief.
The district court continued to believe, even two years later,
that the Ninth Circuit was wrong and that the district court
was right: “I do continue to disagree that after imposing a
time-served sentence, I was foreclosed from putting him on
probation. I think probation was a legal sentence.” It is
wishful thinking to suggest that the district court would have
changed its mind in 2011 in the context of a Rule 35 motion
or a habeas petition when the same judge explicitly stated two
years later that he still believed the clearly erroneous sentence
was lawful. Such a motion would have been futile.

    Second, it would have been difficult, if not impossible, for
Defendant to timely file either a motion to correct his
sentence or a habeas petition, even had his counsel noticed
20            UNITED STATES V. CASTRO-VERDUGO

the error.6 Rule 35(a) states that “Within 14 days after
sentencing, the court may correct a sentence that resulted
from arithmetical, technical, or other clear error.” Fed. R.
Crim. Proc. 35(a). “This and other circuit courts have held
that the fourteen-day deadline is jurisdictional, thus divesting
the district court of the power to amend the sentence after
fourteen days.” United States v. Aguilar-Reyes, 

, 1055 (9th Cir. 2011). Thus, the district court would
only have had jurisdiction to consider the remedy the
majority suggests, a Rule 35 motion to correct the sentence,
for fourteen days after the imposition of sentence.7
Moreover, the Defendant was deported the day after the
erroneous sentencing. See note 

. Once Defendant
was removed and no longer represented by a federal defender,
surely there was no way, nor reason why, he would have filed
a pro se motion or habeas petition from abroad. As the
majority points out, Defendant would have just “one year
from ‘the date on which the judgment of conviction becomes
final’ to bring a motion under § 2255.” Majority Op. at 11
quoting § 2255(f)(1). In other words, by the time Defendant
was taken into custody in the United States in 2013, both the
fourteen-day Rule 35 window and the one-year habeas
window had long since closed. Thus, it is difficult to see how


  6
    The sentence imposed “was plain error, which was not waived by the
failure of counsel to object at the time of sentencing.” United States v.
Lawton, 

, 1089 (9th Cir. 1999) superseded in part on other
grounds as recognized in United States v. Tapia, 

, 1063 (9th
Cir. 2011).
  7
    While there was much discussion over whether the district court had
jurisdiction to revoke Defendant’s probation in 2013, it is beyond dispute
that the district court did not have jurisdiction to correct its illegal sentence
pursuant to a Rule 35 motion after the fourteen-day window had closed.

.
             UNITED STATES V. CASTRO-VERDUGO                           21

Defendant could have timely availed himself of either of the
remedies the majority suggests.8

    Finally, once the Defendant was removed from the
country, the day after the district court committed its plain
error at sentencing, any attempt to correct the error likely
would have been denied as moot.9 The only harm improperly
imposed on Defendant was the illegal term of probation. The
imposition of probation would not “continue to present a live
controversy after the petitioner’s release or deportation,”
Abdala v. I.N.S., 

, 1064 (9th Cir. 2007), until
and unless he reentered the United States. As long as

     8
       A third potential remedy is filing a notice of appeal from the
sentencing or the denial of the hypothetical Rule 35 motion in 2011; that
again makes no sense. If filed, Defendant would already have been
removed. See note 

. It is difficult to understand the incentive to
file a notice of appeal, unless Defendant was contemplating, at the time of
his removal, an illegal return to the United States and his subsequent
apprehension.

     Also, such a remedy would have necessitated substantial delays. The
median time from filing a notice of appeal to a final disposition in this
Circuit was 17.4 months in 2011. U.S. Court of Appeal - Judicial
Caseload Profile - Ninth Circuit Court of Appeals (2012), available at
http://www.ce9.uscourts.gov/statistics/appeals_court.pdf. Meanwhile, the
median prison term imposed on a person convicted of an immigration
offense in 2011 in this Circuit was 15 months, meaning half of all people
convicted of an immigration offense served less than 15 months in
custody. United States Sentencing Commission, Statistical information
Packet Fiscal Year 2011 Ninth Circuit 10 (2011), available at
http://www.ussc.gov/Data_and_Statistics/Federal_Sentencing_Statistics
/State_District_Circuit/2011/9c11.pdf.
 9
   While this Court has held that a sentence “of probation meet[s] the ‘in
custody’ requirement for section 2255 jurisdiction,” United States v.
Spann, 

, 1386 n.5 (9th Cir. 1996), here there was no actual
harm until and unless Defendant returned to the United States.
22         UNITED STATES V. CASTRO-VERDUGO

Defendant was in Mexico, the imposition of probation, albeit
illegal, was moot and the case or controversy requirement
could not have been satisfied where, as here, the Defendant
does not “continue[] to suffer actual collateral consequences.”
Zegarra-Gomez v. I.N.S., 

, 1127 (9th Cir.
2003). Thus, even if defense counsel had realized the error
and timely filed a motion to correct or a habeas petition, the
relief sought was moot unless and until Defendant reentered
the country. The majority seems to suggest that a habeas
petition would allow the federal courts to provide prospective
relief in the face of uncertain, speculative future harm.
Surely it is in the interests of judicial economy and consistent
with the well-established doctrine of justiciability for
Defendant to have waited to challenge the illegality of the
term of probation until the harm from that sentence became
real.

    Nor is the majority persuasive in suggesting that this
Court lacks a “source of authority pursuant to which we may
rule on the validity” of the imposition of punishment after the
revocation of Defendant’s probation. Majority Op. at 11.
“The courts of appeals . . . shall have jurisdiction of appeals
from all final decisions of the district courts.” 28 U.S.C.
§ 1291. An order revoking probation is a final judgment
subject to appeal under 28 U.S.C. § 1291. See, e.g., United
States v. Vasquez, 

(9th Cir. 1998) (reviewing
the imposition of punishment upon a revocation of probation
pursuant to 28 U.S.C. § 1291). This Court has jurisdiction
and with jurisdiction comes a source of authority to correct
the clear error in this case.

   What happened in this case is analogous to the following
hypothetical. A removable alien defendant is convicted of a
Class C felony and sentenced to a five-year term of
           UNITED STATES V. CASTRO-VERDUGO                    23

supervised release in violation of 18 U.S.C. § 3583 which
clearly prohibits a term of supervised release greater than
three years for a Class C felony. The defendant has no
incentive to file a habeas petition or a direct appeal, either of
which could require him to spend months in custody awaiting
a disposition or to litigate an effectively moot habeas petition
seeking prospective relief for an as yet unrealized harm. In
fact, the illegal sentence would only impact the defendant if
he is apprehended within the United States during the fourth
or fifth year of supervised release. During the first three
years, the imposition of supervised release was lawful. After
the fifth year, the illegal portion of the supervised release
would have expired. Thus, there would be a narrow window
of time during which the illegal sentence might possibly
prove detrimental to the defendant, but challenging the
sentence outside of that window would ensure the defendant
spend longer in custody or waste judicial resources resolving
a moot habeas petition. In these circumstances, no effective
counsel would challenge or move to correct the illegal
sentence until the defendant entered the United States and
was apprehended during the two year window and the
prospective harm became concrete.

    In 2012, the more than 6,000 criminal cases with an
illegal reentry charged in district courts within this
Circuit accounted for more than 29 percent of all criminal
defendants in the Circuit. United States Courts for
the Ninth Circuit, 2012 Annual Report 65 (2013),
available at http://www.ce9.uscourts.gov/publications/
AnnualReport2012.pdf. Unlike almost all other criminal
cases, people convicted of immigration violations are, with
few exceptions, deported upon completion of their sentences.
Therefore, it is essential that judges follow the law in
imposing sentence. That did not happen here, as the majority
24           UNITED STATES V. CASTRO-VERDUGO

admits. This appeal presented an entirely appropriate remedy
to correct the error upon the revocation of probation in 2013.
The majority chose to ignore it, under a flawed analysis of
precedent. Therefore, I cannot concur in the judgment.10




 10
    Because this court should have reversed and corrected the clear error
below, the panel need not have reached the issue of whether the
imposition of a term of supervised release was an abuse of discretion.
However, having reached the issue, I agree that the district court did not
abuse its discretion in imposing a term of supervised release even though
Defendant was a deportable alien. The application note to Guideline
§ 5D1.1(c) makes clear that a court may impose supervised release on a
removable alien “if the court determines it would provide an added
measure of deterrence.” The record indicates that Defendant’s family is
in Mexico. Thus, the imposition of supervised release served as an added
deterrent to reentry because a violation of supervised release would result
in a longer separation from Defendant’s family than would a conviction
for another reentry alone.