United States v. Lorenzo Tucker

• Court: Court of Appeals for the Ninth Circuit
• Decided: December 21, 2018
• Docket: 17-10146
• Status: Unpublished

Opinion

NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS FILED FOR THE NINTH CIRCUIT DEC 21 2018 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS UNITED STATES OF AMERICA, No. 17-10146

Plaintiff-Appellee, D.C. No. 2:08-cr-00025-KJD-CWH-1 v.

LORENZO TUCKER, MEMORANDUM*

Defendant-Appellant.

Appeal from the United States District Court for the District of Nevada Kent J. Dawson, District Judge, Presiding

Submitted December 18, 2018** San Francisco, California

Before: CALLAHAN, N.R. SMITH, and MURGUIA, Circuit Judges.

After a jury verdict, Lorenzo Tucker was sentenced to 96 months of

imprisonment and 3 years of supervised release for unlawful possession of a

firearm by a previously convicted felon. During his supervised release, the

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). Probation Department submitted multiple petitions alleging that Tucker violated

the terms of his release. Following a contested revocation hearing, the district

court found that Tucker committed all of the alleged violations, except one of the

alleged incidents of child abuse, and sentenced him to 18 months’ imprisonment

followed by 18 months’ supervised release.

On appeal, Tucker claims that the government violated his due process

rights by not providing adequate notice of the new crimes that he committed while

on supervised release. We review de novo a defendant’s claim of insufficient

notice in violation of the due process rights incorporated by Fed. R. Crim. P. 32.1.

United States v. Havier, 155 F.3d 1090, 1092 (9th Cir. 1998). A due process

violation at a revocation proceeding is also subject to harmless error analysis. See,

e.g., United States v. Walker, 117 F.3d 417, 420–21 (9th Cir. 1997). We have

jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742, and we affirm.1

The government likely provided Tucker with adequate notice of the alleged

violations. The petitions stated the charged offenses—child abuse and

forgery—and included a detailed description of the alleged violations including

dates and locations. Unlike the situation in Havier, 155 F.3d at 1093, on which

1 Because the parties are familiar with the factual and procedural history of the case, we need not recount it here. 2 Tucker relies, here, the notice identified the specific offenses. See United States v.

Tham, 884 F.2d 1262, 1265 (9th Cir. 1989).

Moreover, even if there were some deficiency in the notice provided to

Tucker, he has failed to show any prejudice. See Walker, 117 F.3d at 420–21

(holding that “to warrant relief, Walker must show that he was prejudiced by the

trial court’s error”). At his initial appearance, the district court asked Tucker if he

understood one of the charges against him was that he “committed the crime of

child abuse by beating [his] son with a belt,” to which Tucker responded: “Okay. I

understand that’s the charge in the petition.” As to the forgery charge, the petition

clearly alleged that Tucker filed and signed an “Affidavit for Dismissal” which

contained the purported signature of his probation officer, and the district court

found that Tucker had intended to defraud. At the revocation hearing, defense

counsel was able to argue that the petition failed to allege the specific statutes he

violated with respect to child abuse and forgery. Tucker has not explained what he

would have done differently had he received written notice of the specific statutes.

If there was error, it was harmless.

The district court’s revocation of Tucker’s supervised release is

AFFIRMED.