UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 08-4026
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
LESTER ORR WEST,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte. Martin K. Reidinger,
District Judge. (3:94-cr-00166-MR-CH-9)
Submitted: September 24, 2008 Decided: October 14, 2008
Before TRAXLER and GREGORY, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
Claire J. Rauscher, Executive Director, Ann L. Hester, Emily
Marroquin, Steven G. Slawinski, FEDERAL DEFENDERS OF WESTERN NORTH
CAROLINA, INC., Charlotte, North Carolina, for Appellant. Gretchen
C. F. Shappert, United States Attorney, Charlotte, North Carolina;
Amy E. Ray, Assistant United States Attorney, Asheville, North
Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Lester Orr West appeals from the revocation of his
supervised release and the imposition of a 33-month sentence for
use of narcotics and committing a new violation of state law. With
respect to the latter offense, West contends the district court
violated his due process rights by revoking his supervised release
based on a charge for which he did not receive adequate notice.
While the district court held that West had violated the terms of
his supervised release by possessing marijuana with intent to
distribute, West asserts that the revocation petition cited only a
pending state charge for felony possession of marijuana. West also
claims the district court provided inadequate reasons for revoking
his supervised release. Because West has failed to demonstrate
that the district court committed reversible error, we affirm.
A preliminary issue in this case is the standard of
review to be employed on appeal. While conceding that due process
claims are generally granted de novo review, the Government
contends that West’s claims are subject to plain error review
because he failed to object to the allegedly insufficient notice in
the district court. However, West asserts that he “effectively
raised his challenge” in the district court by asserting that the
violation charged in the petition constituted a Grade B violation,
not a Grade A violation. While his objection before the district
court is related to the claim he now presents on appeal, West
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nevertheless failed to bring his claim of insufficient notice to
the attention of the district court. See Fed. R. Crim. P. 52(b).
West’s contention that his conduct was wrongly classified is not
equivalent to asserting that the petition failed to provide
adequate notice of the charges against him. Therefore, West failed
to make a timely assertion of his due process rights before the
district court. See United States v. Olano, 507 U.S. 725, 733
(1993). Accordingly, any error by the district court is subject to
plain error review. Id. at 731-32. Four conditions must be met
before this court will notice plain error: (1) there must be error;
(2) it must be plain under current law; (3) it must affect
substantial rights, typically meaning the defendant is prejudiced
by the error in that it affected the outcome of the proceedings;
and (4) the error seriously affected the fairness, integrity, or
public reputation of judicial proceedings. Id. at 732-37.
While revocation hearings are not part of a criminal
prosecution, a defendant is nonetheless entitled to the “minimum
requirements of due process,” including “written notice of the
claimed violations.” Morrissey v. Brewer, 408 U.S. 471, 489
(1972); see also Fed. R. Crim. P. 32.1(b)(2)(A); Gagnon v.
Scarpelli, 411 U.S. 778, 782 (1973). In the present case, even if
the notice provided by the revocation petition was insufficient,
West has nevertheless failed to demonstrate that this rises to the
level of plain error. The plain error standard is satisfied when
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the “settled law of the Supreme Court or this circuit” establishes
that an error has occurred. United States v. Neal, 101 F.3d 993,
998 (4th Cir. 1996) (internal quotation marks and citation
omitted). In the absence of such binding authority, decisions by
other circuits courts may be considered. Id. In this case, not
only are there no decisions by the Supreme Court or this court in
regard to this particular issue, but the limited and varied rulings
made by other circuits fail to establish any consistent standards
that would indicate the error in this case was “clear” or
“obvious.” See Olano, 507 U.S. at 734.
Additionally, West has not demonstrated that this error
was prejudicial and “affected the outcome of the district court
proceedings.” Id. Despite West’s claims, the relevant issue is
not whether he received a higher sentence as a result of the
district court’s finding of a Grade A violation, but whether the
lack of adequate notice prejudiced his defense. Based on the
record, there is no indication that West’s defense would have been
altered had he been provided with additional information regarding
the charged violation, as West merely denied committing the offense
and presented no defense in response to the evidence of
distribution.
Finally, any error relating to the revocation petition
did not “seriously affect the fairness, integrity or public
reputation of judicial proceedings.” Olano, 507 U.S. at 736-37.
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Accordingly, even if the notice provided by the revocation petition
was insufficient, West has failed to demonstrate that this
constituted plain error.
West also contends that the district court provided
inadequate reasons for revoking his supervised release. As part of
the revocation hearing, the district court is required to produce
a written statement of evidence and reasons for revoking supervised
release. United States v. Copley, 978 F.2d 829, 831 (4th Cir.
1992) (citing Black v. Romano, 471 U.S. 606, 610 (1985)). In lieu
of a written statement, the district court may provide a
transcribed oral finding “when the transcript and record compiled
before the trial judge enable the reviewing court to determine the
basis of the trial court’s decision.” Copley, 978 F.2d at 831.
In this case, the district court considered the
Government’s evidence, heard argument on the element of intent to
distribute, and found that West “violate[d] the terms of his
supervised release with regard to violation number [two] in that he
did have felony possession of a Schedule VI controlled substance
and the possession of drug paraphernalia as set forth in the
petition.”* While West contends the district court’s ruling was
ambiguous because the petition only alleged felony possession of
*
When the Government responded by noting that marijuana was a
“Schedule I” narcotic under federal law, the district court stated
that it was “using the language that is set forth in the petition”
and that the “specific finding that I would make is that he was in
possession of marijuana with the intent to distribute it.”
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marijuana and the court failed to identify the “specific statute
subsection upon which it was proceeding,” these claims merely
repeat West’s prior assertions in regard to notice requirements.
West has failed to demonstrate any error by the district court, as
the evidence presented at the hearing and the ruling made by the
district court clearly indicated that West’s supervised release was
revoked because he violated a condition of his release by
possessing marijuana with intent to distribute. See Copley, 978
F.2d at 832. Therefore, the district court provided adequate
reasons for revoking West’s supervised release.
Accordingly, we affirm the district court’s revocation of
West’s supervised release. We dispense with oral argument because
the facts and legal contentions are adequately presented in the
materials before the court and argument would not aid the
decisional process.
AFFIRMED
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