United States v. Robert Jackson

422 F. App'x 408
CourtCourt of Appeals for the Sixth Circuit
DecidedApril 28, 2011
Docket10-4165
StatusUnpublished
Cited by6 cases

This text of 422 F. App'x 408 (United States v. Robert Jackson) is published on Counsel Stack Legal Research, covering Court of Appeals for the Sixth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Robert Jackson, 422 F. App'x 408 (6th Cir. 2011).

Opinion

HELENE N. WHITE, Circuit Judge.

Defendant-Appellant Robert Jackson appeals the district court’s revocation of his supervised release and imposition of a sentence of six months’ imprisonment and six months’ supervised release. He argues that the district court violated his due process rights when it did not offer him an opportunity to cross examine the probation officer at the supervised-release revocation hearing, and that the court’s sentence was procedurally unreasonable. We affirm.

I.

Jackson pleaded guilty on July 13, 2009 to interfering with public service at a federal building in violation of 18 U.S.C. § 245(b). On October 14, 2009, he was sentenced to time served plus one day, to be followed by one year of supervised release.

In April 2010, the United States Probation Office filed a Petition for Warrant for Offender under Supervision, alleging six violations of the terms of Jackson’s supervised release. The alleged violations were: 1) that he left the judicial district without permission (by driving to Indiana); 2) that he failed to submit monthly written reports to his probation officer for January, February, and March 2010; 3) that he failed to notify his probation officer of a change of address; 4) that he used marijuana (and admitted to the probation officer that he had done so); 5) that he committed a state offense in Indiana (resisting law enforcement); and 6) that he failed to take psychiatric medication as prescribed. The district court held a supervised-release revocation hearing on September 21, 2010.

At the revocation hearing, Jackson admitted that he left the district without permission, that he did not file written reports with his probation officer in February and March of 2010, and that he was convicted of a state offense in Indiana. Jackson denied the other allegations (that he failed to inform his probation officer of a change of address, that he had admitted to using marijuana, and that he stopped taking, and admitted to not taking, his prescribed psychiatric medication). The district court found that based on the three admitted violations alone, Jackson would be guilty of a Grade B violation, which requires revocation of supervised release. The court then calculated the *410 maximum sentence for the violation under the Sentencing Guidelines: 12 months’ imprisonment. The court heard from Jackson’s counsel and from the government regarding their suggestions for sentencing, and provided Jackson with an opportunity to speak. The court then questioned the probation officer about the charges Jackson had denied, but did not place the probation officer under oath. The officer described his basis for alleging the three violations Jackson denied, the court credited his testimony and found Jackson guilty of all six alleged violations. The court revoked Jackson’s supervised release and sentenced him to six months’ imprisonment followed by six months’ supervised release, to be served in a residential reentry center. Jackson filed a timely appeal.

II.

Jackson argues that the district court violated due process by failing to allow him to cross examine the probation officer, whose uncontested, and unsworn, statement provided the basis for the court’s finding that Jackson committed the three alleged violations he did not admit. Jackson did not request to cross-examine the probation officer at the hearing and did not object to the lack of cross-examination or the court’s failure to place the officer under oath. Therefore, this Court’s review is for plain error. United States v. Warman, 578 F.3d 320, 345 (6th Cir.2009). To constitute plain error, there must be “(1) error (2) that was obvious or clear, (3) that affected defendant’s substantial rights and (4) that affected the fairness, integrity, or public reputation of the judicial proceedings.” United States v. Vonner, 516 F.3d 382, 386 (6th Cir.2008) (en banc) (internal quotation marks omitted).

A district court may revoke a term of supervised release if it “finds by a preponderance of the evidence that the defendant violated a condition of supervised release.” 18 U.S.C. § 3583(e)(3). “The same procedural requirements applicable to hearings regarding revocation of parole apply to hearings regarding revocation of supervised release.” United States v. Lowenstein, 108 F.3d 80, 85 (6th Cir.1997). In Morrissey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972), the Supreme Court held that, although “the full panoply of rights due a defendant in [criminal prosecutions] does not apply to parole revocations,” due process does require certain minimum procedural protections “to assure that the finding of a parole violation will be based on verified facts and that the exercise of discretion will be informed by an accui-ate knowledge of the parolee’s behavior.” Id. at 480, 484. As announced by the Morrissey Court, the minimum requirements of due process for revocation hearings include “the right to confront and cross-examine adverse witnesses (unless the hearing officer specifically finds good cause for not allowing confrontation).” Id. at 489; see also Gagnon v. Scarpelli, 411 U.S. 778, 782, 93 S.Ct. 1756, 36 L.Ed.2d 656 (1973) (discussing due process guarantees in revocation-of-probation hearings); United States v. Kirby, 418 F.3d 621, 627-28 (6th Cir.2005) (applying Momssey to supervised-release-revocation hearings). The constitutional requirements announced in Morrissey are codified in Federal Rule of Criminal Procedure 32.1, which provides that in a revocation hearing the defendant is entitled to “an opportunity to appear, present evidence, and question any adverse witness unless the court determines that the interest of justice does not require the witness to appear.” Fed. R.Crim.P. 32.1(b)(2)(C); see also Fed. R.Crim.P. 32.1, Advisory Committee Notes to the 2002 Amendments (explaining that in applying Rule 32.1(b)(2)(C), “[t]he court is to balance the person’s interest in the *411 constitutionally guaranteed right to confrontation against the government’s good cause for denying it,” and citing Morrissey, 408 U.S. at 489, 92 S.Ct. 2598). The “flexible evidentiary standard that applies to revocation proceedings allows consideration of evidence that would be inadmissible in a criminal prosecution,” but it does not strip the defendant of all protections. United States v.

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422 F. App'x 408, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-robert-jackson-ca6-2011.