United States v. Maloney ( 2008 )

Opinions of the United
2008 Decisions States Court of Appeals
for the Third Circuit
1-17-2008
USA v. Maloney
Precedential or Non-Precedential: Precedential
Docket No. 06-3745
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PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 06-3745
UNITED STATES OF AMERICA
v.
SHARIF MALONEY,
Appellant
On Appeal from the United States District Court
for the District of New Jersey
(D.C. No. 01-cr-00203-1)
District Judge: Honorable Jerome B. Simandle
Argued December 13, 2007
Before: SLOVITER, AMBRO, Circuit Judges,
and POLLAK,* District Judge
(Filed: January 17, 2008)
_____
K. Anthony Thomas (Argued)
Office of Federal Public Defender
Newark, N.J. 07102
Attorney for Appellant
*
Hon. Louis H. Pollak, Senior Judge, United States District
Court for the Eastern District of Pennsylvania, sitting by
designation.
George S. Leone
Office of United States Attorney
Newark, N.J. 07102
Glenn J. Moramarco (Argued)
Office of United States Attorney
Camden, N.J. 08101
Attorneys for Appellee
____
OPINION OF THE COURT
SLOVITER, Circuit Judge.
The District Court found Sharif Maloney guilty of
violating three conditions of his supervised release and
sentenced him to imprisonment for a year and a day and one
additional year of supervision. Maloney appeals. We must
consider whether there was adequate evidence to support the
District Court’s findings. Although we review the record
relating to all three conditions, the principal legal issue is
whether the condition of supervised release requiring Maloney to
notify his probation officer of questioning by law enforcement
officers was impermissibly vague.
I.
In 2001, while on parole from a felony conviction in New
Jersey state court, Maloney was convicted in federal court of
possessing a firearm in violation of 18 U.S.C. § 922(g)(1), and
was sentenced to a term of twenty-eight months and eighteen
days imprisonment and a three-year term of supervised release.
After completing his term of imprisonment and beginning his
period of supervision on January 12, 2004, Maloney undertook
work as a shoe peddler in Newark.
It was the view of the Probation Office that Maloney
2
“made a poor adjustment to supervision.” App. at 215. In early
2006, it filed a petition charging Maloney with violating a
number of the conditions of his supervised release. On May 16,
2006, Maloney pled guilty to one of the charges, i.e., that he had
violated his conditions of supervision by associating with
convicted felons; he was continued on supervised release with
the additional condition that he serve six months in a halfway
house. Before Maloney was designated to a facility, however,
the Probation Office learned that he had attended the trial of a
member of the “Bloods” street gang, entering and leaving the
courtroom in close proximity with another convicted felon. The
Probation Office also learned that Maloney had been issued a
summons by the Newark Police Department for failing to display
a peddler’s license. Suspecting that Maloney had further
violated the conditions of his supervised release, the Probation
Office sought a warrant for his arrest.
While Maloney was detained pending a revocation
hearing, the Probation Office learned that Maloney had been
charged with eluding the police. This charge arose from New
Jersey State Trooper Marcos Arroyo’s report that a red Mercedes
Benz registered to and driven by Maloney had fled after Trooper
Arroyo attempted to stop the vehicle. Consequently, the
Probation Office filed a petition charging Maloney with four
violations of his supervised release: (1) failing to notify his
probation officer that he had been questioned by police in
connection with the summons for failure to display his peddler’s
license; (2) associating with a convicted felon;1 (3) failing to
report that he had purchased or had access to the red Mercedes;
and (4) committing the crime of eluding a law enforcement
officer during his period of supervision (hereafter referred to as
Charges No. 1, No. 3, and No. 4).
At Maloney’s revocation hearing, the government
introduced testimony by Maloney’s probation officer, Anthony
1
Because the District Court found Maloney not guilty of
Charge No. 2, we do not further discuss its underlying facts or
otherwise refer to it in this opinion.
3
Nisi, and by Trooper Arroyo. Nisi testified about the summons
Maloney was issued for failing to display his peddler’s license
on May 4, 2006 (Charge No. 1). When Nisi asked the Newark
Police Department about the issuance of the summons, he “was
informed that in order for this summons to be issued, contact is
necessary” because “the law enforcement officer simply just
does not write a summons and walk away.” App. at 51. Nisi
testified that Maloney did not notify him of this incident,
although the two had met on May 23, 2006, more than two
weeks after the summons was issued. When Nisi asked Maloney
why he did not notify him of the summons, Maloney simply
shrugged and responded that he did not know. The summons
was ultimately dismissed.
Trooper Arroyo testified about the facts underlying the
charge of eluding a law enforcement officer (Charge No. 4). In
the early hours of May 7, 2006, Arroyo spotted the red Mercedes
near the highway, recognizing the vehicle from an unsuccessful
pursuit he had engaged in earlier that week. As the car slowly
turned onto the highway Arroyo verified the license plate
number and then illuminated the vehicle’s interior with his
spotlight for approximately ten seconds. Arroyo activated the
overhead lights of his patrol car, the signal to stop. Instead, the
car “fled,” at a speed that Arroyo estimated was in excess of 110
miles per hour. App. at 21-22. Before the Mercedes fled,
Arroyo viewed four black males in the car, but he concentrated
on the driver, whom he later described as having dreadlocks.
Later that day, Arroyo learned that the red Mercedes was
registered to Maloney, obtained pictures of him from state
databases, and identified him as the driver of the vehicle that he
had pursued that morning.
Arroyo testified that he encountered the red Mercedes a
third time the very next day, and on this occasion a woman
identified as Summer Sprofera was driving the car. Arroyo
testified that Sprofera told him Maloney was driving the red
Mercedes in the early hours of May 7. Nisi confirmed that the
red Mercedes and two additional vehicles were registered in
Maloney’s name, and that Maloney failed to report his
ownership of those vehicles in his monthly supervision report.
4
In his defense, Maloney presented the testimony of his
girlfriend, a friend, and an investigator from the Federal Public
Defender’s office. Saleemah Graham, Maloney’s girlfriend,
testified that she was with Maloney during the early hours of
May 7, that she did not believe Maloney would have purchased
the red Mercedes, and that she had spoken to Tamar Watson,
later identified as Rajan Ali, who stated that Maloney had
registered the vehicle for him as a favor. Graham also stated that
Maloney had braids, rather than dreadlocks. Maloney’s friend,
Otto Chase, testified that he had never seen Maloney in a red
Mercedes and did not know him to own such a vehicle. The
investigator, Ben Grade, testified that he interviewed the red
Mercedes’ previous owners and that they did not identify
Maloney as the purchaser of the vehicle. He also testified that
he interviewed Sprofera, and that she asserted that her boyfriend,
Ali, was the red Mercedes’ actual owner, that she had never seen
Maloney in the car, and that she did not remember telling Arroyo
that Maloney was driving the car on May 7. Sprofera did not
testify, nor did Ali. Investigator Grade did not interview Ali.
In a statement that he made to the Court at the end of the
hearing, Maloney denied that he owned or had driven the red
Mercedes; rather, he stated that he had registered the car as a
favor to Ali, whom he had met through his peddling business
and who was the actual driver on the night in question.
Regarding his failure to list the car in his monthly report,
Maloney stated that he did not consider himself the owner of the
vehicle, that the car was no longer registered in his name at the
time he turned in his written report, and that he simply forgot to
put it in his report. Finally, with respect to the summons,
Maloney stated that he did not report that incident to his
probation officer because he was asked for his peddler’s license
nearly every day and that on the occasion at issue he had not
been arrested for wrongly displaying that license, but was merely
issued a citation. Thus, he did not believe that he was required
to report this incident.
The District Court found by a preponderance of the
evidence that Maloney was guilty of violating his conditions of
supervised release by failing to report that he had been
5
questioned by a law enforcement officer, failing to report that he
owned or drove the red Mercedes, and committing a crime by
eluding a law enforcement officer. On August 8, 2006, the
District Court sentenced Maloney to twelve months and one day
imprisonment and an additional year of supervised release.
Maloney timely filed a notice of appeal.
II.
The District Court had jurisdiction over this matter
pursuant to 18 U.S.C. § 3583(e)(3). We have jurisdiction
pursuant to 28 U.S.C. § 1291.
A district court must find “by a preponderance of the
evidence that the defendant violated a condition of supervised
release . . . .” 18 U.S.C. § 3583(e)(3). The District Court’s
decision to revoke supervised release is reviewed for abuse of
discretion. See Gov’t of Virgin Islands v. Martinez, 239 F.3d
293, 297 (3d Cir. 2001). However, the factual findings
supporting that decision are reviewed for clear error; legal issues
are subject to de novo review. United States v. Poellnitz, 372
F.3d 562, 565-66 & n.6 (3d Cir. 2004) (citing United States v.
Blackston, 940 F.2d 877, 882 (3d Cir. 1991)).
III.
Charge No. 1 concerns Maloney’s failure to notify his
probation officer of the incident during which he received a
summons for improperly displaying his peddler’s license. The
other two charges relate to the red Mercedes: its ownership and
the identification of Maloney as the driver on May 7, 2006.
Accordingly, we separate our analysis of the charges.
A.
The charges relating to the red Mercedes do not require
extensive discussion.
The standard conditions of supervision require that an
individual “shall not commit another federal, state, or local
6
crime during the term of supervision.” App. at 210. They also
require that the supervisee “shall submit a truthful and complete
written report within the first five days of each month.” App. at
210. Pursuant to the latter condition, Maloney was required to
report all vehicles that he owned or drove during each reporting
period. If we affirm the District Court’s judgment that Maloney
violated the former condition by eluding the police in the red
Mercedes, we must also affirm the judgment of violation based
on Maloney’s failure to report that he owned or drove that
vehicle. We focus, then, on the District Court’s conclusion that
Maloney committed a crime by eluding the police while driving
the red Mercedes on May 7, 2006.
Maloney argues (1) that the District Court’s consideration
of Arroyo’s identification testimony violated due process and (2)
that there was insufficient evidence to prove that Maloney was
the driver of the red Mercedes on May 7, 2006. The first of
these arguments challenges Arroyo’s identification as a matter of
law and is subject to de novo review whereas the second
challenges the District Court’s factual findings and will be
reviewed for clear error.
Maloney emphasizes that “[a]n identification procedure
that is both (1) unnecessarily suggestive and (2) creates a
substantial risk of misidentification violates due process.”
United States v. Brownlee, 454 F.3d 131, 137 (3d Cir. 2006)
(citing Manson v. Brathwaite, 432 U.S. 98, 107 (1977)). Once
the court determines that an identification procedure is
unnecessarily suggestive, the “central question” is “whether
under the ‘totality of the circumstances’ the identification was
reliable even though the confrontation procedure was
suggestive.” Neil v. Biggers, 409 U.S. 188, 199 (1972). The
Supreme Court has instructed that the following factors should
be considered by courts to assist their analysis of reliability: (1)
“the opportunity of the witness to view the criminal at the time
of the crime,” (2) “the witness’ degree of attention,” (3) “the
accuracy of his prior description of the criminal,” (4) “the level
of certainty demonstrated at the confrontation,” and (5) “the time
between the crime and the confrontation.” Brathwaite, 432 U.S.
at 114 (citing Biggers, 409 U.S. at 199-200); see also Brownlee,
7
454 F.3d at 139. “Against these factors is to be weighed the
corrupting effect of the suggestive identification itself.”
Brathwaite, 432 U.S. at 114.
We cannot quarrel with Maloney’s argument that
Arroyo’s identification of Maloney followed a suggestive
procedure. After his observation of the red Mercedes, Arroyo
returned to the station and obtained official photographs of the
registered owner of the Mercedes, who was Maloney. Arroyo
viewed those photographs and concluded that Maloney was the
driver he sought.
The District Court credited Arroyo’s identification of
Maloney, noting that Arroyo “was close enough to have gotten
the license number and to have gotten it correctly and then to
have matched it up with the defendant’s name and gotten a
positive identification after examining photographs, [which]
were unquestionably of the defendant.” App. at 187. The
District Court also explicitly considered all aspects of Arroyo’s
viewing conditions, Arroyo’s confusion regarding braids and
dreadlocks,2 the alibi offered by Maloney’s girlfriend, and
Maloney’s contention that Ali was the driver on the night in
question. Considering whether Arroyo got “a good enough view
of the driver in order to say with certainty, as he did on the
witness stand, that Mr. Maloney was the driver who eluded,” the
District Court concluded that “[i]f the standard here were proof
beyond a reasonable doubt, I would probably acquit, but the
standard is proof by a preponderance of the evidence. Here the
preponderance of the evidence demonstrates that Mr. Maloney
was the driver of the vehicle on the night in question.” App. at
187-88.
Although Biggers guides our analysis of Arroyo’s
2
When Arroyo was informed that Maloney had braids,
rather than dreadlocks, he stated that he did not “know how to
match the name with the style . . . .” App. at 44. Accordingly,
Arroyo’s mistake may be seen as one of terminology rather than
misidentification.
8
identification, we must also take into account the context in
which the identification was introduced. See Morrissey v.
Brewer, 408 U.S. 471, 481 (1972) (noting that “due process is
flexible and calls for such procedural protections as the
particular situation demands”); cf. United States v. Smith, 571
F.2d 370, 373 n.3 (7th Cir. 1978) (per curiam). Arroyo’s
identification testimony was not submitted as evidence at a
criminal trial, and Maloney did not seek suppression of Arroyo’s
testimony. Arroyo’s testimony about his identification of
Maloney was given at the revocation hearing, where he faced not
only cross-examination, but was rigorously questioned by the
District Court.
Revocation proceedings are subject to “minimum
requirements of due process.” Gagnon v. Scarpelli, 411 U.S.
778, 786 (1973) (quoting Morrissey, 408 U.S. at 489). Those
requirements include:
(a) written notice of the claimed violations of [probation
or] parole; (b) disclosure to the [probationer or] parolee
of evidence against him; (c) opportunity to be heard in
person and to present witnesses and documentary
evidence; (d) the right to confront and cross examine
adverse witnesses (unless the hearing officer specifically
finds good cause for not allowing confrontation); (e) a
‘neutral and detached’ hearing body . . . and (f) a written
statement by the factfinder as to evidence relied on and
reasons for revoking [probation or] parole.
Id. at 786 (quoting Morrissey, 408 U.S. at 489). These
requirements have been incorporated into Rule 32.1 of the
Federal Rules of Criminal Procedure, which governs the
revocation of supervised release. See United States v. Barnhart,
980 F.2d 219, 222 (3d Cir. 1992) (citing Fed. R. Crim. P. 32.1
advisory committee’s note). Maloney does not argue that the
revocation procedure at issue here failed to satisfy the due
process requirements set forth in Morrissey/Scarpelli and Rule
32.1.
At Maloney’s revocation hearing, the District Court
9
recognized that the procedure Arroyo used to identify Maloney
was suggestive, but the Court carefully analyzed the reliability of
that identification, noting that Arroyo was close enough to the
red Mercedes to read its license plate, had employed his police
training to focus his attention on the driver, was certain of his
testimony, and had identified the suspect less than twenty-four
hours after the initial viewing. The District Court weighed these
factors with the sub-optimal viewing conditions, the
terminological discrepancy in Arroyo’s description of the
suspect’s hairstyle, and the corrupting nature of the particular
identification procedure used here. After independently
considering the Biggers factors and taking into account
Maloney’s extensive cross-examination of Arroyo pursuant to
Rule 32.1, we conclude that the District Court’s consideration of
Arroyo’s identification testimony did not violate the due process
protections guaranteed to Maloney at his revocation proceeding.
Maloney also challenges the sufficiency of the evidence
supporting the District Court’s finding that he was guilty of
eluding the police. The District Court emphasized that the
standard of review applicable at the revocation hearing was vital
to its decision. The same is true of our conclusion. We find that
the District Court did not clearly err in finding Maloney guilty by
a preponderance of the evidence after considering Arroyo’s
identification testimony, Maloney’s registered ownership of the
red Mercedes, and Maloney’s alibi. Because we affirm the
District Court’s conclusion that Maloney was driving the red
Mercedes in the early hours of May 7, 2006, we also affirm its
conclusion that Maloney violated his supervised release by
failing to report that he owned or drove that vehicle (Charge No.
3). The Court also found that Maloney’s evidence purporting to
show that Ali, and not Maloney, was the true owner simply did
not overcome the presumption that Maloney, in whose name the
car was registered, was the owner at the relevant time. That
finding was not clearly erroneous.
B.
A standard condition of supervised release requires
supervised individuals to “notify the probation officer within
10
seventy-two hours of being arrested or questioned by a law
enforcement officer.” App. at 210 (emphasis added). The
District Court held that Maloney violated this condition when he
failed to report that a law enforcement officer asked him for his
peddler’s license, and that Maloney’s subsequent receipt of a
summons for failing to produce the proper license “should have
impressed upon him the importance of complying with this
condition and reporting this questioning by law enforcement to
his probation officer.” App. at 182. Maloney argues that the
term “questioned” in this condition is impermissibly vague and
that the District Court’s guilty determination must be vacated.
The vagueness doctrine is premised on fairness, and thus
requires that individuals are given “fair warning” of their legal
obligations. San Filippo v. Bongiovanni, 961 F.2d 1125,
1135-36 (3d Cir. 1992) (quoting Colten v. Kentucky, 407 U.S.
104, 110 (1972)). We have held that “a condition of supervised
release violates due process and is void for vagueness if it ‘either
forbids or requires the doing of an act in terms so vague that men
of common intelligence must necessarily guess at its meaning
and differ as to its application.’” United States v. Lee, 315 F.3d
206, 214 (3d Cir. 2003) (quoting United States v. Loy, 237 F.3d
251, 262 (3d Cir. 2001)). In addition, such conditions “must
provide specific standards which avoid arbitrary and
discriminatory enforcement.” Tolchin v. Supreme Court of New
Jersey, 111 F.3d 1099, 1115 (3d Cir. 1997) (citing Grayned v.
City of Rockford, 408 U.S. 104, 109 (1972)).
Here, the meaning of the term “questioned” in the
condition of supervision was extensively discussed during
Maloney’s revocation hearing. The diverging constructions and
artificial limitations attached to that term demonstrate the
unsettled nature of its boundaries.
Nisi, Maloney’s probation officer, testified that the
incident was covered by the condition because “contact” with
law enforcement was necessary for the issuance of a summons
and Maloney knew that he was required to report any contact
with law enforcement. On cross-examination, Nisi reiterated
that he equated questioning with contact, and asserted that
11
Maloney “basically knows what I mean by basic contact with
law enforcement.” App. at 65-66. Nisi conceded that a court
officer’s request for identification upon entering the courthouse
would not constitute contact sufficient to violate the condition.
Nonetheless, although Nisi did not know what information
Maloney had given to the code enforcement officer who issued
the summons, he concluded that the failure to report the incident
was a violation of Maloney’s condition of supervision.
Maloney stated that police and code enforcement officers
routinely approached him in his capacity as a peddler and asked
him to produce his peddler’s license. During the incident in
question, Maloney showed the code enforcement officer his
peddler’s license but was issued a summons because a
corresponding license that he was required to display on his cart
was not visible. Maloney stated that he did not believe this
incident to be within the scope of his conditions of supervision
because he was regularly asked for his license and he had not
been arrested in connection with the incident at issue. Maloney
analogized the incident to the issuance of a parking ticket,
stating that he believed the condition required him to report
questioning when he was in custody or had been arrested, rather
than upon the receipt of a citation.
The District Court also commented on the breadth of the
condition, stating that it would be “ridiculous” to suggest that the
condition was so broad as to encompass the basic questions
asked when one enters a federal building or undergoes a routine
security check at an airport. App. at 168. However, the District
Court asserted that the condition was not so narrow as to be
limited to contact resulting in a conviction. The District Court
then focused on the facts of this case, emphasizing that the
questioning of Maloney had resulted in the issuance of a
summons. The District Court stated that failure to report “a
mere contact wouldn’t be a violation,” but that the purpose of the
broad reporting requirement is to allow probation officers to
exercise their judgment about whether a particular instance of
questioning was important. App. at 176. The District Court
opined that “[t]here are plenty of other instances where such
questioning probably would not rise to the level of what’s
12
anticipated here,” but concluded that “this isn’t one of them.”
App. at 183. The Court concluded, therefore, that “as a matter
of due process, [Maloney] was put on notice” of his obligation to
report the incident at issue. App. at 183.
The divergent attempts to interpret the term “questioned”
during Maloney’s revocation hearing illustrate the ambiguous
scope of this condition of supervised release. There is general
consensus that a simple request for identification would not
violate the condition despite the fact that such a request clearly
fits within the definition of the word and could be construed as a
technical violation of the condition. Yet there is a glaring lack
of consistency regarding the level of interaction required to
transform basic contact with law enforcement into an incident
that must be reported in order to avoid possible imprisonment.
Although Nisi and the District Court considered the issuance of
a summons material, the language of the condition focuses not
on the result of the questioning, but on the simple act of
questioning. We will not read the condition of supervision to
incorporate a result-based threshold that is not evident on its
face. See United States v. Johnson, 446 F.3d 272, 281 (2d Cir.
2006) (“Generally, supervised release provisions are read to
exclude inadvertent violations.”) (citing Arciniega v. Freeman,
404 U.S. 4 (1971) (per curiam)). The District Court could have
required Maloney to report the receipt of a summons or citation
as a condition of his supervised release, but that was not listed as
a condition of supervised release. The condition regarding
questioning may not be used to encompass the mere receipt of a
code enforcement summons in the absence of an express
condition to that effect.
Nor do we endorse Nisi’s broad interpretation of the
questioning condition. Courts have warned against according
undue deference to a probation officer’s interpretation of a
condition of supervision, as “[a] probation officer could well
interpret the term more strictly than intended by the court or
understood by” the individual being supervised. United States v.
Guagliardo, 278 F.3d 868, 872 (9th Cir. 2002). Nisi’s
characterization of the condition as applying to mere “contact”
with law enforcement demonstrates the validity of this concern.
13
The text of the condition of supervision does not include the
word “contact,” and Maloney’s testimony implies that he read
the condition at face value to cover arrest and similarly serious
questioning. There is no corroboration in the record that Nisi
notified Maloney of his broad construction or that Maloney
understood that he was to report every “contact” with law
enforcement.
The government, relying on Morrissey, 408 U.S. at 478-
79, contends that vague conditions of supervised release simply
reflect the broad discretion accorded to probation officers and
that the exercise of this discretion does not undermine the
condition challenged here. However, a vague condition of
supervision “cannot be cured by allowing the probation officer
an unfettered power of interpretation, as this would create one of
the very problems against which the vagueness doctrine is meant
to protect, i.e., the delegation of ‘basic policy matters to
policemen . . . for resolution on an ad hoc and subjective basis.’”
Loy, 237 F.3d at 266 (quoting Grayned, 408 U.S. at 109).
Moreover, our concern is not with the discretion of the probation
officer per se, but with the specificity of the condition of
supervision as drafted. Therefore, that the system of supervised
release affords a great deal of discretion to probation officers
does not affect our consideration of whether the written
condition is impermissibly vague. To hold otherwise would
foreclose the possibility that a condition of supervised release
may be found impermissibly vague.
In sum, the record reflects that Maloney was required to
“guess at [the] meaning” of the term “questioned” in his
condition of supervision and that “men of common intelligence”
differed as to its application under the very circumstances
presented here. Id. at 267 (quoting Connally v. General Constr.
Co., 269 U.S. 385, 391 (1926)). Accordingly, we conclude that,
as applied in the factual setting of this case, the condition of
supervision requiring Maloney to report that he had been
“questioned” by law enforcement was impermissibly vague.
We do not lightly reach this conclusion, nor do we hold
that all instances of questioning would be the basis for a
14
successful challenge to this standard condition of supervision.
Rather, the proximity of the terms “arrested” and “questioned” in
the condition demonstrates that Maloney’s interpretation was not
unreasonable in the circumstances of this case. The interaction
between Maloney and the code enforcement officer is not
comparable to the contact generally contemplated by the notion
of arrest and questioning. This was not a situation involving
sustained questioning of a suspect in a pending criminal
investigation. It was not even the type of questioning incident to
a criminal trespass warning issued to a supervisee following
multiple police complaints of stalking and harassment, e.g.,
United States v. Salinas, 365 F.3d 582, 584 (7th Cir. 2004), nor
the type of questioning relating to a disorderly conduct charge
where a supervisee threatened to strike his victim with a baseball
bat, e.g., United States v. Marvin, 135 F.3d 1129, 133 (7th Cir.
1998). Here, Maloney was merely subject to a citation and the
summons was dismissed.
It is important that conditions of supervision be drafted
with sufficient specificity to ensure that they do not result in the
arbitrary enforcement of supervised release. As applied to the
facts of this case, the language of the questioning condition left
open such arbitrariness. Our statement in Loy that the condition
“as currently written violates due process by failing to provide
[defendant] with adequate notice” of what he must do so as not
to violate his supervised release, 237 F.3d at 267, is equally
applicable here. We cannot sustain the finding of a violation as
to Charge No. 1.
IV.
The government, citing United States v. English, 400 F.3d
273, 276 (5th Cir. 2005), argues that if we sustain even a single
violation, we may deem any other errors harmless and affirm the
judgment of sentence. Unlike the court in English, however, the
District Court did not explicitly indicate that its judgment would
remain the same even if certain aspects of its decision were not
sustained on appeal. See id. On the contrary, the District Court
stated that the violation premised on eluding would “drive the
sentence more than the” other two violations. App. at 317
15
(emphasis added). Under these circumstances, we believe
remand is necessary to give the District Court the opportunity to
consider whether a shorter period of supervised release would be
appropriate in light of our reversal of violation as to Charge No.
1.
V.
For the above-stated reasons, we will reverse the
judgment of guilty as to Charge No. 1, affirm the judgment of
guilty as to Charges Nos. 3 and 4, and remand for resentencing.
16