United States v. Bennie Dunlap, III , 667 F. App'x 828 ( 2016 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 14-4956
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
BENNIE JOSEPH DUNLAP, III,
Defendant - Appellant.
No. 14-4957
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
BENNIE JOSEPH DUNLAP, III,
Defendant - Appellant.
Appeals from the United States District Court for the Eastern
District of North Carolina, at Raleigh. Terrence W. Boyle,
District Judge. (5:12-cr-00282-BO-1; 5:10-cr-00186-BO-1)
Submitted: December 3, 2015 Decided: August 9, 2016
Before SHEDD, KEENAN, and DIAZ, Circuit Judges.
Vacated and remanded by unpublished per curiam opinion.
Cindy H. Popkin-Bradley, CINDY H. POPKIN-BRADLEY ATTORNEY AT
LAW, Raleigh, North Carolina, for Appellant. John Stuart Bruce,
Acting United States Attorney, Jennifer P. May-Parker, Phillip
A. Rubin, Assistant United States Attorneys, Raleigh, North
Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:
In these consolidated appeals, Bennie Joseph Dunlap, III,
appeals the district court’s judgment revoking supervised
release and sentencing him to 2 consecutive 24-month sentences.
Dunlap contends that the court erred by not explaining the
chosen sentences. After we reviewed the record, we directed the
parties to file supplemental briefs on the issue of whether the
court’s handling of the revocation proceeding violated Dunlap’s
due process right to a fair trial in an impartial tribunal. We
now vacate the judgment and remand for another revocation
proceeding before a different district court judge.
“A fair trial in a fair tribunal is a basic requirement of
due process.” In re Murchison, 349 U.S. 133, 136 (1955). “Few
constitutional principles are more firmly established than a
defendant’s right to be heard on the specific charges of which
he is accused.” Dunn v. United States, 442 U.S. 100, 106
(1979). At a revocation hearing, the defendant has the right to
appear, to present evidence, and to make a statement and present
information in mitigation. Fed. R. Crim. P. 32.1(b)(2)(E).
Upon our careful review of the record, we conclude that the
district court, at the very least, gave the appearance that it
had decided to revoke Dunlap’s supervised release and impose the
maximum sentence possible before Dunlap had a chance to testify
or make a statement in mitigation of sentence. After hearing
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the government’s evidence in support of the charges, the
district court asked the probation officer to identify the
maximum possible sentence and whether it could impose
consecutive terms. Upon learning that the law allowed 2
consecutive 24-month sentences, the court stated, “Okay. Okay.
I’ll do it,” and only then directed Dunlap to take the stand and
testify. (Joint Appendix 78).
Under these circumstances, in which the court appears to
have decided on revocation and a specific, maximum sentence
before hearing from the defendant, the “fairness and integrity
of the court proceedings would be brought into serious disrepute
were we to allow the sentence to stand.” United States v. Cole,
27 F.3d 996, 999 (4th Cir. 1994); see also United States v.
Godwin, 272 F.3d 659, 679 (4th Cir. 2001) (Our “ultimate concern
. . . must be whether the trial judge’s comments were so
prejudicial as to deny a party an opportunity for a fair and
impartial trial.” (internal quotation marks omitted)).
Accordingly, we vacate the district court’s judgment and
remand for a new revocation proceeding before a different
district court judge. We dispense with oral argument because
the facts and legal contentions are adequately presented in the
materials before this court and argument would not aid the
decisional process.
VACATED AND REMANDED
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