United States v. Robertson

367 F. App'x 301
CourtCourt of Appeals for the Third Circuit
DecidedMarch 1, 2010
DocketNo. 09-1325
StatusPublished

This text of 367 F. App'x 301 (United States v. Robertson) is published on Counsel Stack Legal Research, covering Court of Appeals for the Third 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. Robertson, 367 F. App'x 301 (3d Cir. 2010).

Opinion

OPINION OF THE COURT

RENDELL, Circuit Judge.

Anthony Robertson appeals from an order of the District Court that revoked his term of supervised release. We conclude that the District Court erred when it failed to conduct a preliminary hearing before revoking Robertson’s supervised release, as Rule 32.1(b)(1)(A) of the Federal Rules of Criminal Procedure requires. However, because Robertson was not prejudiced by that error, we conclude that his “substantial rights” were not affected and he is not entitled to relief under plain error review. As a result, we will affirm the order of the District Court.

I.

In October 2006, Anthony Robertson pleaded guilty to Count One of a superseding indictment which charged him with being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1). The District Court sentenced him to twenty-four months of imprisonment, to be followed by three years of supervised release. Robertson was released from prison in December 2007, but was arrested three months later by McKeesport, Pennsylvania police (Lieutenant Hanna) on charges of possession with intent to deliver cocaine. In March 2008, Robertson was arrested again, this time in Pittsburgh on firearm and marijuana possession charges. Thereafter, the District Court issued an arrest warrant based on Robertson’s apparent violations of his supervised release.

Robertson’s initial court appearance for the violations took place before a magistrate judge on November 24, 2008. A supervised release revocation hearing was scheduled for December 9, 2008, but Robertson was granted a continuance until January 13, 2009. At Robertson’s request, a status conference was held on that day, wherein Robertson complained about his lawyer’s performance and expressed to the District Court that he feared for his safety in prison. Robertson was granted a continuation of his revocation hearing until January 22, 2009.

At the revocation hearing, Lieutenant Hanna testified to the events leading up to Robertson’s arrest in McKeesport. Hanna testified that he observed, from approximately six feet away, Robertson make a hand-to-hand drug transaction outside a local bar, and then drive away (as the passenger) in a car. Hanna testified that after the car was pulled over by another officer, Hanna searched the car and found a bag of suspected cocaine base between the front seats. After that, Hanna arrested Robertson. Approximately two hundred dollars was found on Robertson’s person.

Hanna was cross-examined by Robertson’s attorney. Against his attorney’s advice, Robertson testified at the revocation hearing. He testified that he had not en[303]*303gaged in a drug transaction, and that he had no idea who owned the cocaine base found in the car he had been riding in. Robertson testified on cross examination that his fiancé had given him the money that was found on his person.

The District Court concluded by a preponderance of the evidence that Robertson had engaged in a drug transaction, in violation of both state and federal law. Accordingly, the District Court issued an order revoking Robertson’s supervised release. It ordered Robertson to serve twenty-four months of imprisonment, to be followed by twelve months of supervised release. Robertson appealed, claiming for the first time that the District Court violated Rule 32.1(b)(1)(A) of the Federal Rules of Criminal Procedure by failing to conduct a preliminary hearing before revoking his term of supervised release. Robertson argues that this failure constituted a violation of his due process rights.

II.

Pursuant to 18 U.S.C. § 3583(e)(3), the District Court had plenary jurisdiction to revoke Robertson’s term of supervised release. Our jurisdiction arises under. 28 U.S.C. § 1291. Because Robertson failed to preserve at the revocation hearing his objection to the lack of a preliminary hearing, we review the decision of the District Court for plain error. United States v. Adams, 252 F.3d 276, 278 (3d Cir.2001). Under plain error review, we may grant relief if the District Court committed an “error” that was “plain” and affected Robertson’s “substantial rights.” Fed. R.Crim.P. 52(a); see United States v. Olano, 507 U.S. 725, 732, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993). A “deviation from a legal rule is an error,” and that “error” is “plain” when it is “clear or obvious.” United States v. Plotts, 359 F.3d 247, 249 (3d Cir.2004) (internal quotations omitted). An error has affected “substantial rights” when it has been prejudicial, i.e., when it has “affected the outcome of the district court proceedings.” Id. (quoting Olano, 507 U.S. at 734, 113 S.Ct. 1770). We only exercise our discretion to correct that error if it “seriously affects the fairness, integrity or public reputation of judicial proceedings.” Id.

III.

Rule 32.1 of the Federal Rules of Criminal Procedure provides for two hearings before a term of supervised release can be revoked: “one a preliminary hearing at the time of his arrest and detention to determine whether there is probable cause to believe that he has committed a violation of his [supervised release], and the other a somewhat more comprehensive hearing prior to the making of the final revocation decision.” Gagnon v. Scarpelli, 411 U.S. 778, 781-82, 93 S.Ct. 1756, 36 L.Ed.2d 656 (1973) (relying on Morrissey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972)). The rule codifies the due process protections recognized in Gagnon and Morrissey, and it explains step-by-step the procedures that a district court must follow before revoking or modifying a term of supervised release.

Specifically, once in custody, a person accused of violating his term of supervised release “must be taken without unnecessary delay before a magistrate judge.” Fed.R.Crim.P. 32.1(a)(1). The magistrate judge must inform the person of the alleged violation, the person’s right to counsel, and “the person’s right, if held in custody, to a preliminary hearing under Rule 32.1(b)(1).” Fed.R.Crim.P. 32.1(a)(3). That preliminary hearing must be promptly conducted by the magistrate judge. Fed.R.Crim.P. 32.1(b)(1)(A).

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Morrissey v. Brewer
408 U.S. 471 (Supreme Court, 1972)
Gagnon v. Scarpelli
411 U.S. 778 (Supreme Court, 1973)
United States v. Olano
507 U.S. 725 (Supreme Court, 1993)
United States v. Robert L. Companion
545 F.2d 308 (Second Circuit, 1976)
United States v. Subir Chaklader
987 F.2d 75 (First Circuit, 1993)
United States v. Michael Anthony Adams
252 F.3d 276 (Third Circuit, 2001)
United States v. Richard Plotts
359 F.3d 247 (Third Circuit, 2004)
United States v. Santana
526 F.3d 1257 (Ninth Circuit, 2008)

Cite This Page — Counsel Stack

Bluebook (online)
367 F. App'x 301, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-robertson-ca3-2010.