USA v. Lemarcus Adrice Hinton, No. 07-12250 (11th Cir. 2007)
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[DO NOT PUBLISH] IN THE UNITED STATES COURT OF APPEALS FILED FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS ________________________ ELEVENTH CIRCUIT No. 07-12250 Non-Argument Calendar ________________________ NOVEMBER 7, 2007 THOMAS K. KAHN CLERK D. C. Docket No. 05-00122-CR-1-1 UNITED STATES OF AMERICA, Plaintiff-Appellee, versus LEMARCUS ADRICE HINTON, Defendant-Appellant. ________________________ Appeal from the United States District Court for the Southern District of Georgia _________________________ (November 7, 2007) Before BIRCH, DUBINA and PRYOR, Circuit Judges. PER CURIAM: Lamarcus Hinton appeals the revocation of his supervised release and sentence of 24 months of imprisonment. Hinton argues that the district court deprived him of due process when it failed to conduct a revocation hearing within a reasonable time. See Fed. R. Crim. P. 32.1(b); Morrissey v. Brewer, 408 U.S. 471, 488, 92 S. Ct. 2593, 2603 04 (1972). Hinton contends that the delay of almost two years between when he self-reported a violation of his supervised release and his revocation hearing was unreasonable. We affirm. Because Hinton raises this argument for the first time on appeal, we review for plain error. See United States v. Aguillard, 217 F.3d 1319, 1320 (11th Cir. 2000). Due process requires that a revocation hearing be tendered within a reasonable time after the parolee is taken into custody for violating the conditions of parole. Morrissey, 408 U.S. at 488, 92 S. Ct. at 2603 04. The same protections granted those facing revocation of parole are required for those facing the revocation of supervised release. United States v. Copeland, 20 F.3d 412, 414 (11th Cir. 1994). The Supreme Court has also stated that because the loss of liberty as a parole violator does not occur until the parolee is taken into custody, there is no constitutional duty to provide [the parolee] an adversary parole hearing until he is taken into custody as a parole violator. Moody v. Daggett, 429 U.S. 78, 87 89, 97 S. Ct. 274, 279 80 (1976). Rule 32.1 also requires that a court hold the 2 revocation hearing within a reasonable time in the district court having jurisdiction. Fed. R. Crim. P. 32.1(b)(2). The district court did not plainly err. The district court conducted Hinton s revocation hearing over two years after Hinton s violation of his supervised release, but Hinton remained free of federal custody during the two-year period. Although we have not addressed the trigger from which a reasonable time is measured under Rule 32.1, the former Fifth Circuit held that the execution of a warrant for a parole violation and the taking into federal custody of the parole violator is the operative factor in triggering the availability of the revocation hearing required by Morrissey. See Cook v. United States Att y Gen., 488 F.2d 667, 671 (5th Cir. 1973). Other circuits also have concluded that the revocation hearing required by Rule 32.1(b) must be held within a reasonable time after the offender is taken into federal custody for violating the conditions of his probation or supervised release. See United States v. Chaklader, 987 F.2d 75, 77 (1st Cir. 1993); see also United States v. Pardue, 363 F.3d 695, 698 (8th Cir. 2004). Hinton s sentence is AFFIRMED. 3
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