United States v. Gordon , 87 F. App'x 384 ( 2004 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT February 17, 2004
Charles R. Fulbruge III
Clerk
No. 03-10541
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
NATHANIEL DEMETRIUS GORDON,
Defendant-Appellant.
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Appeal from the United States District Court
for the Northern District of Texas
USDC No. 3:00-CR-00429-2
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Before HIGGINBOTHAM, EMILIO M. GARZA, and PRADO, Circuit Judges.
PER CURIAM:*
Nathaniel Demetrius Gordon appeals the district court’s
revocation of his supervised release. Gordon argues that the
protections afforded by Boykin v. Alabama, 395 U.S. 238 (1969),
and FED. R. CRIM. P. 11 should be extended to supervised-release
revocation proceedings. He contends that his revocation should
be vacated because the district court did not inquire on the
record whether his plea of true was knowing and voluntary.
Because Gordon raises this argument for the first time on
appeal, this court’s review is for plain error only. See United
*
Pursuant to 5TH CIR. R. 47.5, the court has determined
that this opinion should not be published and is not precedent
except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
No. 03-10541
-2-
States v. Olano, 507 U.S. 725, 732-33 (1993). Contrary to
Gordon’s assertion, plain error review applies to issues of law
raised for the first time on appeal. See id.
In United States v. Johns, 625 F.2d 1175, 1176 (5th Cir.
1980), this court held that FED. R. CRIM. P. 11 is inapplicable to
probation-revocation hearings. The issue whether the district
court should have complied with FED. R. CRIM. P. 11 at Gordon’s
revocation hearing is foreclosed by Johns. Thus, Gordon fails to
demonstrate that the district court erred by not complying with
FED. R. CRIM. P. 11.
This court has not yet addressed the issue whether Boykin
is applicable to supervised-release or probation-revocation
hearings. See Johns, 625 F.2d at 1176. Given the lack of
controlling authority in this circuit on this issue, any error
by the district court with regard to Boykin was not clear or
obvious and, therefore, does not meet the plain-error standard.
See United States v. Dupre, 117 F.3d 810, 817 (5th Cir. 1997).
Accordingly, the district court’s judgment is AFFIRMED.