Opinion
No. 08-4354-cr.
March 9, 2010.
Appeal from the United States District Court for the Southern District of New York (Patterson, J.).
ON CONSIDERATION WHEREOF, it is hereby ORDERED, ADJUDGED, and DECREED that the judgment of the district court is AFFIRMED in part, VACATED in part, and REMANDED.
Tina Schneider, Portland, ME, for Defendant-Appellant.
David A. O'Neil, Assistant to the Solicitor General (Katherine Polk Failla, Assistant United States Attorney, on the brief) for Preet Bharara, United States Attorney for the Southern District of New York, New York, NY, for Appellee.
SUMMARY ORDER
Defendant-Appellant Rafael Barrios was convicted following a jury trial of possession with intent to distribute cocaine, and possessing a fire arm in furtherance of, and carrying the firearm during and in relation to, a drug trafficking crime. He was sentenced to 83 months' imprisonment, followed by two terms of three years' supervised release to run consecutively. On appeal, Barrios argues that the district court's judgment should be reversed because the district court (Cote, J.) wrongly denied his motion to suppress the fruits of the inventory search of his vehicle that yielded the cocaine. We assume the parties' familiarity with the facts and procedural history of the case.
Barrios argues that the impoundment of his vehicle, which preceded the inventory search, violated the Fourth Amendment because vehicle impoundments under the police community care taking function must be made pursuant to standardized procedures and there is no evidence that standardized procedures were followed in this case. Because Barrios did not make this argument to the district court, we review his claim for plain error. See Fed.R.Crim.P. 52(b); United States v. Olano, 507 U.S. 725, 731-32, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993). Under plain error review, we may notice an error only if it is plain and affects the substantial rights of the defendant. Olano, 507 U.S. at 732, 113 S.Ct. 1770. "An error is plain if the ruling was contrary to law that was clearly established by the time of the appeal." United States v. Polouizzi, 564 F.3d 142, 156 (2d Cir. 2009) (internal quotation marks omitted). We conclude that even if there were error here, a question we do not reach, it would not be plain because the law of this Court does not clearly establish that vehicle impoundments under the police community care taking function must be made pursuant to standardized procedures. Indeed, there is a split among the circuits on this question, and this Court has not yet addressed it. Compare United States v. Proctor, 489 F.3d 1348, 1354 (D.C. Cir. 2007) (requiring standardized procedures to be followed), United States v. Petty, 367 F.3d 1009, 1012 (8th Cir. 2004) (same), and United States v. Duguay, 93 F.3d 346, 351 (7th Cir. 1996) (same), with United States v. Smith, 522 F.3d 305, 312 (3d Cir. 2008) (declining to require standardized procedures), and United States v. Coccia, 446 F.3d 233, 239 (1st Cir. 2006) (same). Accordingly, we affirm Barrios's conviction.
Barrios was sentenced to two terms of three years' supervised release to run consecutively following his term of imprisonment. By statute, "[t]he term of supervised release commences on the day the person is released from imprisonment and runs concurrently with any Federal, State, or local term of probation or supervised release or parole for another offense to which the person is subject or becomes subject during the term of supervised release." 18 U.S.C. § 3624(e) (emphasis added). The parties agree that this was plain error, although Barrios had not initially raised it. We therefore remand his case to the district court for the sole purpose of entering a corrected judgment specifying that the two terms of supervised release are to run concurrently. See 18 U.S.C. § 3742(f)(1).
For the foregoing reasons, Barrios's conviction is AFFIRMED; Barrios's sentence is VACATED insofar as it requires him to serve two terms of supervised release consecutively; and we remand for resentencing. Judgment AFFIRMED in part, VACATED in part, and REMANDED.