United States v. Jason Schwyhart , 81 F. App'x 608 ( 2003 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 03-1529
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United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the
* Western District of Missouri.
Jason Lee Schwyhart, * [UNPUBLISHED]
*
Appellant. *
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Submitted: November 4, 2003
Filed: November 6, 2003
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Before WOLLMAN, FAGG, and MORRIS SHEPPARD ARNOLD, Circuit Judges.
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PER CURIAM.
In 1989, Schwyhart was sentenced to 121 months’ imprisonment and 5 years’
supervised release upon his guilty plea to armed bank robbery. While Schwyhart was
serving his supervised release, the district court1 found that he had violated his release
conditions and thus revoked supervised release and imposed a 36-month prison term.
Schwyhart appeals, and we affirm.
1
The Honorable Richard E. Dorr, United States District Judge for the Western
District of Missouri.
Schwyhart was scheduled to commence the 5-year supervised release term in
October 1997. Prior to his release, however, a detainer was filed against him in
another district court for charges of assaulting an inmate. Schwyhart was convicted
and served a 60-month prison sentence on the assault charge and thus was not
released from prison until March 2002. Beginning in September 2002, the probation
office filed three violation reports. Until the sentencing portion of those revocation
proceedings, Schwyhart proceeded pro se--at his choice, against the court’s strong
advice--with the assistance of standby counsel.
Schwyhart’s counsel argues on appeal that Schwyhart’s supervised release had
expired prior to some or all of the violations and that he was not given adequate
notice of his release conditions or of the violations relied upon by the court. In a pro
se supplemental brief, Schwyhart argues additionally that none of the violations
justified the 36-month sentence; there was insufficient evidence of some of the
violations; the district court’s refusal to allow him to cross-examine a witness at the
revocation hearing violated his right to confront witnesses; his decision to represent
himself was an invalid waiver of counsel; the district court’s refusal to appoint new
counsel and an investigator, and to ensure his access to a law library, violated due
process; and counsel was ineffective.
All of the foregoing arguments fail, and we reject them with little discussion:
(1) given the time that Schwyhart served on his subsequent assault conviction, he was
still on supervised release for his bank-robbery conviction on January 7, 2003, when
he committed the last violations relied upon by the district court, see 18 U.S.C.
§ 3624(e) (term of supervised release does not run while person is imprisoned for at
least 30 days); (2) he received written notice of his release conditions when he was
sentenced on the bank robbery, see 18 U.S.C. § 3583(f); (3) he received adequate
notice of the violations at issue before the preliminary hearing and the revocation
hearing, and any irregularity in the notice process was harmless, see Fed. R. Crim. P.
32.1(b)(1)(A), (b)(2), 52(a); (4) the district court had ample evidence to find
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Schwyhart violated his release conditions, see 18 U.S.C. § 3583(e)(3) (court must
find violation by preponderance of evidence); (5) the sentence was within the limits
of section 3583(e)(3), and was not an abuse of discretion, see United States v.
Grimes, 54 F.3d 489, 492 (8th Cir. 1995); (6) the district court did not abuse its
discretion in limiting cross-examination of a witness at the revocation hearing, see
United States v. Love, 329 F.3d 981, 984 (8th Cir. 2003) (standard of review); (7) the
court discussed with Schwyhart his decision to represent himself, setting out the
problems involved, see United States v. Stewart, 20 F.3d 911, 917 (8th Cir. 1994);
(8) he was not denied due process by the district court’s refusal to appoint new
counsel or an investigator, or to address his concerns about a law library, because the
court appointed the federal public defender to represent him, first as standby counsel
then as primary counsel upon Schwyhart’s request; and (9) his ineffective-assistance
claim is not properly before us, see United States v. Cain, 134 F.3d 1345, 1352 (8th
Cir. 1998).
Accordingly, we affirm. We also grant counsel’s motion to withdraw, and we
deny Schwyhart’s motion for new counsel.
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