United States v. Lemarcus Adrice Hinton , 253 F. App'x 839 ( 2007 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
NOVEMBER 7, 2007
No. 07-12250 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 05-00122-CR-1-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
LEMARCUS ADRICE HINTON,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Georgia
_________________________
(November 7, 2007)
Before BIRCH, DUBINA and PRYOR, Circuit Judges.
PER CURIAM:
Lamarcus Hinton appeals the revocation of his supervised release and
sentence of 24 months of imprisonment. Hinton argues that the district court
deprived him of due process when it failed to conduct a revocation hearing within a
reasonable time. See Fed. R. Crim. P. 32.1(b); Morrissey v. Brewer, 408 U.S. 471,
488, 92 S. Ct. 2593, 2603–04 (1972). Hinton contends that the delay of almost two
years between when he self-reported a violation of his supervised release and his
revocation hearing was unreasonable. We affirm.
Because Hinton raises this argument for the first time on appeal, we review
for plain error. See United States v. Aguillard, 217 F.3d 1319, 1320 (11th Cir.
2000).
Due process requires that a revocation hearing “be tendered within a
reasonable time after the parolee is taken into custody” for violating the conditions
of parole. Morrissey, 408 U.S. at 488, 92 S. Ct. at 2603–04. “The same
protections granted those facing revocation of parole are required for those facing
the revocation of supervised release.” United States v. Copeland, 20 F.3d 412, 414
(11th Cir. 1994). The Supreme Court has also stated that because “the loss of
liberty as a parole violator does not occur until the parolee is taken into custody,”
there is “no constitutional duty to provide [the parolee] an adversary parole hearing
until he is taken into custody as a parole violator.” Moody v. Daggett, 429 U.S. 78,
87–89, 97 S. Ct. 274, 279–80 (1976). Rule 32.1 also requires that a court “hold the
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revocation hearing within a reasonable time in the district court having
jurisdiction.” Fed. R. Crim. P. 32.1(b)(2).
The district court did not plainly err. The district court conducted Hinton’s
revocation hearing over two years after Hinton’s violation of his supervised
release, but Hinton remained free of federal custody during the two-year period.
Although we have not addressed the trigger from which a “reasonable time” is
measured under Rule 32.1, the former Fifth Circuit held that the execution of a
warrant for a parole violation and the taking into federal custody of the parole
violator “is the operative factor in triggering the availability of the revocation
hearing” required by Morrissey. See Cook v. United States Att’y Gen., 488 F.2d
667, 671 (5th Cir. 1973). Other circuits also have concluded that the revocation
hearing required by Rule 32.1(b) must be held within a reasonable time after the
offender is taken into federal custody for violating the conditions of his probation
or supervised release. See United States v. Chaklader, 987 F.2d 75, 77 (1st Cir.
1993); see also United States v. Pardue, 363 F.3d 695, 698 (8th Cir. 2004).
Hinton’s sentence is
AFFIRMED.
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