United States of America, Plaintiff-appellee, v. Felipe Alamillo, Defendant-appellant, 941 F.2d 1085 (10th Cir. 1991)

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US Court of Appeals for the Tenth Circuit - 941 F.2d 1085 (10th Cir. 1991) Aug. 13, 1991

Michael J. Norton, U.S. Atty. and James P. Moran, Asst. U.S. Atty., Denver, Colo., on the brief, for plaintiff-appellee.

Felipe Alamillo, pro se.

Before LOGAN, MOORE, and BALDOCK, Circuit Judges.

MOORE, Circuit Judge.

After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist the determination of this appeal. See Fed. R. App. P. 34(a); 10th Cir.R. 34.1.9. The cause is therefore ordered submitted without oral argument.

This is an appeal from the denial of a motion for relief under 28 U.S.C. § 2255. See United States v. Alamillo, 754 F. Supp. 827 (D. Colo. 1990). Appellant, Felipe Alamillo, contends the district court erred in not vacating his sentence because the sentence includes a provision for supervised release. We affirm.

Mr. Alamillo was convicted on three counts relating to the possession and distribution of marijuana and sentenced to concurrent thirty-three month terms. In addition, the district court imposed a three-year term of supervised release under 18 U.S.C. § 3583.

In his § 2255 motion in the district court, Mr. Alamillo argued supervised release violates the constitutional prohibition of double jeopardy; constitutes cruel and unusual punishment; violates his rights to free association, due process, and equal protection; and, is an impermissible "bill of attainder." In a supplemental pleading, Mr. Alamillo argued in the imposition of sentence the district court violated Fed. R. Crim. P. 11(c) (1). We agree with the district court's disposition of those issues and affirm substantially for the reasons set forth in the court's published order.

On appeal, Mr. Alamillo raises an argument not presented to the district court. He contends the Sentencing Reform Act of 1984 is invalid because it violates the constitutional requirement of separation of powers. While we do not ordinarily consider arguments raised for the first time on appeal, United States v. Orr, 864 F.2d 1505, 1508 (10th Cir. 1988), we note the issue is without merit. Mistretta v. United States, 488 U.S. 361, 412, 109 S. Ct. 647, 102 L. Ed. 2d 714 (1989).