Tuesday, August 13, 2013

No Notice Required in Revocation Hearing for Court to Rely on Behavior Not Alleged

United States v. Warren, No. 12-20203 (July 22, 2013) (Stewart, Barksdale, Higginson)

Warren appealed his twenty-four-month sentence for violating his conditions of release. His guideline range was eight to fourteen months of imprisonment for the two listed violations of testing positive for marijuana and failing to participate in drug treatment counseling sessions. During the revocation hearing, the court raised the concern that eleven of nineteen of Warren’s urine samples had returned with an invalid result. The court determined that Warren was uncooperative and was "gaming the system." Warren objected to the court’s reliance on the invalid urine samples without pre-hearing notice and to the sentence being outside the guideline range.

The panel could not find any authority resolving "whether pre-hearing notice is required for all facts on which the district court may rely at revocation sentencing" and concludes that no notice is required. 
We hold that the district court was not required, by Federal Rule of Criminal Procedure 32.1 or the Due Process Clause, to provide Warren with pre-sentencing notice of all points raised in the revocation sentencing colloquy . . . .

While it is procedural error to sentence on erroneous facts, "the burden is on the defendant ‘to demonstrate that the district court relied on materially untrue information.’" Warren never argued that the court incorrectly concluded that eleven urine samples yielded invalid results. Therefore, the panel finds no procedural error in his revocation sentence. The panel also finds that his sentence was not substantively unreasonable.



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