IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT
No. 99-40153 Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
TREY BUBENIK,
Defendant-Appellant.
-------------------- Appeal from the United States District Court for the Southern District of Texas USDC No. C-96-CR-217-7 --------------------
September 8, 1999
Before GARWOOD, HIGGINBOTHAM and WIENER, Circuit Judges.
PER CURIAM:*
Trey Bubenik appeals the revocation of his probation. After
concluding that two positive test results indicated Bubenik had
violated two terms of his probation, the district court sentenced
him to 24 months in prison. He now argues that (i) the written
judgment is fatally defective, (ii) he received ineffective
assistance of counsel during the revocation proceedings, (iii)
* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4. No. 99-40153 -2-
the district court abused its discretion in concluding he had
violated conditions of his probation, and (iv) his right to due
process was violated during the revocation proceedings.
Upon determining that a defendant violated a condition of
his probation, a district court may revoke a sentence of
probation and resentence the defendant. There are currently no
binding sentencing guidelines for violations of probation.
United States v. Peña, 125 F.3d 285, 287 (5th Cir. 1997), cert.
denied, 118 S. Ct. 1527 (1998). We will affirm a resentence
following a revocation of probation unless the new sentence is
“‘in violation of law or is plainly unreasonable.’” Id.
(citation omitted). Whether a sentence is illegal is reviewed de
novo. United States v. Byrd, 116 F.3d 770, 773 (5th Cir. 1997).
When imposing a sentence after a revocation, a district court is
not required to utilize the guidelines range produced for the
original sentencing. Peña, 125 F.3d at 287.
Bubenik argues that the judgment is fatally defective,
primarily because it does not indicate that he admitted his use
and possession of cocaine only as to one of the two occasions
alleged in the Government’s revocation petition. Because Bubenik
pleaded true to the May 1997 episode, the judgment correctly
indicates that he admitted his guilt to possessing and using
cocaine in violation of his probation. The district court
determined, by virtue of both the May 1997 and October 1998 test
results, that Bubenik had violated his probation as well by
failing to participate as directed in a drug-treatment program.
The judgment correctly reflects that determination. Bubenik No. 99-40153 -3-
contends that the Government abandoned this charge, but, in doing
so, he mischaracterizes the record. When the revocation hearing
reconvened on a second day, the Government indicated that it
wished to abandon only the allegations in a second paragraph of
that charge, allegations relating to Bubenik’s purported failure
to attend counseling sessions and to report for drug testing.
The Government did not abandon the allegation in the first
paragraph of that charge, an allegation that Bubenik’s positive
drug tests revealed a failure to participate in drug treatment as
directed.
The written judgment does contain an omission: Both
violations are listed as occurring only on October 23, 1998, the
date of Bubenik’s second positive test result. The omission of
the earlier date does not, however, justify the relief sought by
Bubenik--a determination that the written judgment is void. See
United States v. Turner, 741 F.2d 696, 698 (5th Cir. 1984)
(noting that any error committed by a district court in refusing
to hear a defendant’s extenuating evidence as to one violation of
probation was harmless, when there was ample evidence of other
violations). Bubenik points to no legal support for the relief
he requests, and we are aware of none. Indeed, in a case
involving a judgment from a criminal conviction, we squarely
rejected the notion that a reversal was required because a
judgment failed to set forth the verdict or findings. United
States v. Garcia, 617 F.2d 1176, 1178 (5th Cir. 1980). We noted
that such a technical defect would at most “be a clerical mistake
which could be corrected by the [district] court at any time” No. 99-40153 -4-
pursuant to Fed. R. Crim. P. 36. Id. Bubenik is not entitled to
a reversal merely because the judgment omits the date of his
earlier violation.
Citing United States v. Holland, 850 F.2d 1048 (5th Cir.
1988), Bubenik argues that the judgment is deficient because it
fails to delineate the evidence relied on and the district
court’s reasons for revoking his probation. Due process requires
that a probationer be given “a written statement . . . of the
evidence relied on and reasons for revoking the probation.”
Holland, 850 F.2d at 1050. However, when a probationer admits a
violation, the written statement is unnecessary. Id. at 1050-51.
The only information omitted from Bubenik’s judgment is the date
of the May 1997 violation, the violation that Bubenik admitted.
Accordingly, the protection offered by a more complete judgment
is unnecessary. Furthermore, we hold that the judgment
adequately indicates why Bubenik’s probation was revoked.
Bubenik argues that he received ineffective assistance of
counsel during the revocation proceedings. A claim of
ineffective assistance is generally not reviewable on direct
appeal unless the district court has already addressed the
contention. United States v. Bounds, 943 F.2d 541, 544 (5th Cir.
1991). There is an exception to this rule when the record is
sufficiently developed to evaluate the claim on the merits. Id.
This exception does not apply when “the only details to which
[the court has] access are [the defendant’s] assertions in his
brief.” Id. No. 99-40153 -5-
The only relevant details before the court are those
contained in Bubenik’s brief. There is no way we can determine,
on the record before us, whether counsel’s performance was
unreasonably deficient or if Bubenik was prejudiced by counsel’s
performance. See id. Accordingly, we decline to reach Bubenik’s
claim of ineffective assistance.
Bubenik argues that the district court abused its discretion
in revoking his probation because there was insufficient evidence
of a violation. In this regard, he argues that the district
court’s reliance on the May 1997 incident constituted double
jeopardy because he had already been required by his probation
officer to spend time in a treatment center as a consequence of
testing positive (there were no prior revocation procceedings).
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IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT
No. 99-40153 Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
TREY BUBENIK,
Defendant-Appellant.
-------------------- Appeal from the United States District Court for the Southern District of Texas USDC No. C-96-CR-217-7 --------------------
September 8, 1999
Before GARWOOD, HIGGINBOTHAM and WIENER, Circuit Judges.
PER CURIAM:*
Trey Bubenik appeals the revocation of his probation. After
concluding that two positive test results indicated Bubenik had
violated two terms of his probation, the district court sentenced
him to 24 months in prison. He now argues that (i) the written
judgment is fatally defective, (ii) he received ineffective
assistance of counsel during the revocation proceedings, (iii)
* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4. No. 99-40153 -2-
the district court abused its discretion in concluding he had
violated conditions of his probation, and (iv) his right to due
process was violated during the revocation proceedings.
Upon determining that a defendant violated a condition of
his probation, a district court may revoke a sentence of
probation and resentence the defendant. There are currently no
binding sentencing guidelines for violations of probation.
United States v. Peña, 125 F.3d 285, 287 (5th Cir. 1997), cert.
denied, 118 S. Ct. 1527 (1998). We will affirm a resentence
following a revocation of probation unless the new sentence is
“‘in violation of law or is plainly unreasonable.’” Id.
(citation omitted). Whether a sentence is illegal is reviewed de
novo. United States v. Byrd, 116 F.3d 770, 773 (5th Cir. 1997).
When imposing a sentence after a revocation, a district court is
not required to utilize the guidelines range produced for the
original sentencing. Peña, 125 F.3d at 287.
Bubenik argues that the judgment is fatally defective,
primarily because it does not indicate that he admitted his use
and possession of cocaine only as to one of the two occasions
alleged in the Government’s revocation petition. Because Bubenik
pleaded true to the May 1997 episode, the judgment correctly
indicates that he admitted his guilt to possessing and using
cocaine in violation of his probation. The district court
determined, by virtue of both the May 1997 and October 1998 test
results, that Bubenik had violated his probation as well by
failing to participate as directed in a drug-treatment program.
The judgment correctly reflects that determination. Bubenik No. 99-40153 -3-
contends that the Government abandoned this charge, but, in doing
so, he mischaracterizes the record. When the revocation hearing
reconvened on a second day, the Government indicated that it
wished to abandon only the allegations in a second paragraph of
that charge, allegations relating to Bubenik’s purported failure
to attend counseling sessions and to report for drug testing.
The Government did not abandon the allegation in the first
paragraph of that charge, an allegation that Bubenik’s positive
drug tests revealed a failure to participate in drug treatment as
directed.
The written judgment does contain an omission: Both
violations are listed as occurring only on October 23, 1998, the
date of Bubenik’s second positive test result. The omission of
the earlier date does not, however, justify the relief sought by
Bubenik--a determination that the written judgment is void. See
United States v. Turner, 741 F.2d 696, 698 (5th Cir. 1984)
(noting that any error committed by a district court in refusing
to hear a defendant’s extenuating evidence as to one violation of
probation was harmless, when there was ample evidence of other
violations). Bubenik points to no legal support for the relief
he requests, and we are aware of none. Indeed, in a case
involving a judgment from a criminal conviction, we squarely
rejected the notion that a reversal was required because a
judgment failed to set forth the verdict or findings. United
States v. Garcia, 617 F.2d 1176, 1178 (5th Cir. 1980). We noted
that such a technical defect would at most “be a clerical mistake
which could be corrected by the [district] court at any time” No. 99-40153 -4-
pursuant to Fed. R. Crim. P. 36. Id. Bubenik is not entitled to
a reversal merely because the judgment omits the date of his
earlier violation.
Citing United States v. Holland, 850 F.2d 1048 (5th Cir.
1988), Bubenik argues that the judgment is deficient because it
fails to delineate the evidence relied on and the district
court’s reasons for revoking his probation. Due process requires
that a probationer be given “a written statement . . . of the
evidence relied on and reasons for revoking the probation.”
Holland, 850 F.2d at 1050. However, when a probationer admits a
violation, the written statement is unnecessary. Id. at 1050-51.
The only information omitted from Bubenik’s judgment is the date
of the May 1997 violation, the violation that Bubenik admitted.
Accordingly, the protection offered by a more complete judgment
is unnecessary. Furthermore, we hold that the judgment
adequately indicates why Bubenik’s probation was revoked.
Bubenik argues that he received ineffective assistance of
counsel during the revocation proceedings. A claim of
ineffective assistance is generally not reviewable on direct
appeal unless the district court has already addressed the
contention. United States v. Bounds, 943 F.2d 541, 544 (5th Cir.
1991). There is an exception to this rule when the record is
sufficiently developed to evaluate the claim on the merits. Id.
This exception does not apply when “the only details to which
[the court has] access are [the defendant’s] assertions in his
brief.” Id. No. 99-40153 -5-
The only relevant details before the court are those
contained in Bubenik’s brief. There is no way we can determine,
on the record before us, whether counsel’s performance was
unreasonably deficient or if Bubenik was prejudiced by counsel’s
performance. See id. Accordingly, we decline to reach Bubenik’s
claim of ineffective assistance.
Bubenik argues that the district court abused its discretion
in revoking his probation because there was insufficient evidence
of a violation. In this regard, he argues that the district
court’s reliance on the May 1997 incident constituted double
jeopardy because he had already been required by his probation
officer to spend time in a treatment center as a consequence of
testing positive (there were no prior revocation procceedings).
Because Bubenik did not raise this argument in the district
court, we review for plain error only. United States v. Olano,
507 U.S. 725, 731-37 (1993); Fed. R. Crim. P. 52(b). Bubenik can
show no error at all, however, because the Double Jeopardy Clause
does not apply to probation-revocation proceedings. United
States v. Whitney, 649 F.2d 296, 298 (5th Cir. Unit B June 1981).
See also id. (noting that “probation revocation proceedings are
not designed to punish a criminal defendant”).
Bubenik complains as well that there was insufficient
evidence that the October 1998 test was accurate or revealed a
knowing use of cocaine. “To obtain reversal of a revocation
order on the basis of evidentiary insufficiency, an appellant
must show clearly that the revoking court abused its discretion.”
United States v. Teran, 98 F.3d 831, 836 (5th Cir. 1996). No. 99-40153 -6-
Bubenik relies on United States v. Courtney, 979 F.2d 45, 50
(5th Cir. 1992), in which we vacated a revocation order because
the district court rested its order on unspecified testimony
about drug testing from previous cases. Nevertheless, we
observed that a district court may “ordinarily rely solely” on
drug tests, and we noted that a district court may also rely on
other evidence, such as the defendant’s “prior use of the drug
and his drug addiction” and “his inconsistent explanations,”
suggesting intentional drug usage. Id. at 49 & n.5.
Bubenik did not assert in the district court, and he
presented no evidence, that the testing procedures he faced were
flawed. He did not object to the admission in evidence of the
October 1998 test results and admitted that he then “did test
positive.” He did testify that there was an innocent
explanation for his positive test result in October 1998, namely
that the night before a waitress had put cocaine in his drink.
However, unlike Courtney, the district court did not rely solely
on Bubenik’s test result as proof of intentional usage. The
court also found that Bubenik’s explanation was incredible. The
court observed that the waitress, alleged by Bubenik to have
spiked his soda as revenge for his failure to respond to her
flirtations, could not have known about his impending drug test.
The court further relied on Bubenik’s history of drug addiction.
We cannot say that the district court shirked its duty “to draw
the appropriate inferences and determine ‘factual contentions and
whom to believe.’” Id. at 49-50 (citation omitted). Bubenik has
not shown an abuse of discretion. No. 99-40153 -7-
Bubenik argues that his right to due process was violated
during the revocation proceedings. Most of his specific
contentions are restatements of arguments we have just rejected.
He does argue that the revocation proceeding was unfair because
the district court declined to hear testimony from a Government
witness, causing the Government to abandon allegations that
Bubenik failed to report for drug screening and counseling as
directed. Bubenik does not explain how these events caused any
unfairness, and we perceive none. The events actually prevented
the Government from making out part of its case. Unfortunately
for Bubenik, the events did not prevent the Government from
making out the remainder of its case.
Bubenik also argues that reliance on the May 1997 drug test
was unfair because that evidence was stale. Because the argument
was not raised in the district court, we review only for plain
error. Bubenik relies on United States v. Tyler, 605 F.2d 851,
853 (5th Cir. 1979), in which we stated that “a lengthy delay
[there 27 months between violations and a second revocation
petition filed by the Government], coupled with [a] probation
officer’s obvious decision not to file these charges in [a] first
petition, is fundamentally unfair.” Tyler is inapposite. Unlike
Tyler, Bubenik did not face a prior revocation proceeding in
which previous violations were purposely withheld by the
Government. Bubenik’s prior violation instead led to treatment
for his drug abuse. As we cautioned in Tyler itself, there is no
need to seek a revocation at every possible opportunity. 605
F.2d at 853. Moreover, we note that in Tyler’s case, there were No. 99-40153 -8-
no fresh violations justifying the revocation; in Bubenik’s case,
the district court specifically found that he possessed and used
cocaine in October 1998, less than two months before the
revocation proceedings were filed. Cf. Turner, 741 F.2d at 698
(noting that any error committed by a district court in refusing
to hear a defendant’s extenuating evidence as to one violation of
probation was harmless, when there was ample evidence of other
violations). Bubenik has shown no violation of due process or
any other error.
AFFIRMED