F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
DEC 20 2004
TENTH CIRCUIT
PATRICK FISHER
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 04-5053
TONYA STEVENS, (D.C. No. 94-CR-162-H)
(N.D. Oklahoma)
Defendant-Appellant.
ORDER AND JUDGMENT*
Before BRISCOE, HOLLOWAY, and HARTZ, Circuit Judges.
Defendant Tanya Stevens appeals the district court’s decision to impose multiple
and consecutive terms of imprisonment for her admitted violations of supervised release.
We exercise jurisdiction pursuant to 28 U.S.C. § 1291 and affirm.
I.
In March 1995, Stevens pled guilty to distribution of a controlled substance and
aiding and abetting, in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2(a); unlawful
*
This order and judgment is not binding precedent, except under the doctrines of
law of the case, res judicata, and collateral estoppel. The court generally disfavors the
citation of orders and judgments; nevertheless, an order and judgment may be cited under
the terms and conditions of 10th Cir. R. 36.3.
sale and disposition of a firearm, in violation of 18 U.S.C. §§ 922(j) and 924(a)(2); and
possession of a firearm after former conviction of a felony, in violation of 18 U.S.C.
§§ 922(g) and 924(a)(2). She was sentenced to concurrent terms of 70 months’
imprisonment and 36 months’ supervised release on each count. Stevens was released
from confinement in January 2000 and began serving her concurrent terms of supervised
release. In October 2001, the probation office filed a petition seeking revocation of her
supervised release, alleging she had committed numerous violations of the conditions of
her supervised release. Stevens admitted four of those violations, but sentencing was
continued pending a term of inpatient and halfway house drug treatment.
In May 2002, the probation office filed a petition seeking revocation of her
supervised release, alleging Stevens had failed to successfully participate in the drug
treatment programs ordered by the district court and had tested positive for
methamphetamine. Stevens admitted the allegations and was sentenced to concurrent
terms of 18 months’ imprisonment and 18 months’ supervised release on each of the
original counts of conviction.
In June 2003, Stevens completed the terms of imprisonment and began serving her
terms of supervised release. On January 5, 2004, the probation office filed a petition
seeking revocation of her supervised release, alleging she had violated the terms of her
supervised release by possessing .14 grams of methamphetamine and a syringe. Stevens
admitted the allegations.
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Stevens objected to the probation office’s recommendation that she be imprisoned
for a term of 18 months. She argued that “[b]ecause the statute governing imprisonment
following revocation of a term of supervised release (18 U.S.C. Sec. 3583(e)(3)) limit[ed]
[her] exposure to 24 months imprisonment, and she ha[d] already served 18 months, a
term of imprisonment of more than six months would violate the law.”1 ROA, Doc. 100
at 1. She further argued that the court could not get around this limitation by imposing
multiple and consecutive terms of imprisonment because the probation office only sought
revocation of a “term” of supervised release and it would be unconstitutional to “sentence
her for violating three terms of supervised release.” Id. at 4. Stevens argued that, since
the petition filed by the probation office did not “name[] which term of supervised release
[wa]s up for revocation,” it “pose[d] a notice problem under the Sixth Amendment.” Id.
at 5. Stevens also argued the doctrine of judicial estoppel prevented the government from
altering its previous position of treating her “terms of supervised release as a single unit.”
Id. at 6. The government agreed with Stevens that “the maximum term of imprisonment
1
Section 3583(e)(3) provides in pertinent part:
The court may . . . revoke a term of supervised release, and require the
defendant to serve in prison all or part of the term of supervised release
authorized by statute for the offense that resulted in such term of supervised
release without credit for time previously served on postrelease supervision,
if the court . . . finds by a preponderance of the evidence that the defendant
violated a condition of supervised release, except that a defendant whose
term is revoked under this paragraph may not be required to serve on any
such revocation . . . more than 2 years in prison if [the offense that resulted
in the term of supervised release] is a class C or D felony.
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for each revoked term of Supervised Release [wa]s six months,” but asserted the district
court had authority under 18 U.S.C. § 3584(a) “to impose concurrent or consecutive
sentences upon revocation of concurrent terms of Supervised Release.” Id., Doc. 101 at
4, 2. The government also noted that multiple terms of imprisonment, whether imposed
as concurrent or consecutive terms, are treated for administrative purposes as a single
aggregate term of imprisonment, citing 18 U.S.C. § 3584(c). With respect to her notice
argument, the government responded that Stevens “wa[s] aware that there [we]re three
terms of supervised release that c[ould] be revoked as she was present at her original
sentencing,” and “[d]ue to the fact that these sentences were originally imposed to run
concurrent it [wa]s reasonable to understand that they [we]re all being addressed in th[e]
[revocation] proceeding.” Id. at 6. As for her judicial estoppel argument, the government
argued the doctrine was inapplicable because “[t]here ha[d] not been inconsistent
positions in this case.” Id.
On April 2, 2004, the district court revoked Stevens’ terms of supervised release
and sentenced her to consecutive terms of six months’ imprisonment on each of the three
counts of conviction. In doing so, the district court stated: “A consecutive sentence was
imposed in order to reflect the seriousness of the offense, to promote respect for the law,
and to afford adequate deterrence to criminal conduct and to protect the public from
further crimes of the defendant.” ROA Vol. III at 8.
II.
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Lack of notice
On appeal, Stevens contends the government failed to provide adequate notice that
it was seeking to revoke all three terms of supervised release and, in turn, that she would
be subject to three separate sentences of imprisonment if the district court decided to
revoke her terms of supervised release. In support of this contention, Stevens points to
the pleading filed by the probation office on January 5, 2004, seeking revocation. She
notes the reference in the pleading in a footnote recounting the background of her case
that she was serving a “term” of supervised release. The effect of this language, Stevens
argues, was to inform her “she was facing revocation of [only] one term of supervised
release, not three.” Aplt. Br. at 4. In other words, Stevens argues, “[s]he was never told
that all three counts to which she had been initially sentenced to serve a term of
supervised release were implicated by” the pleading filed by the probation office. Id.
A defendant facing a possible revocation of supervised release is entitled to certain
minimum due process protections. See United States v. Chatelain, 360 F.3d 114, 121 (2d
Cir. 2004); United States v. Copeland, 20 F.3d 412, 414 (11th Cir. 1994); United States v.
Copley, 978 F.2d 829, 831 (4th Cir. 1992); cf. Gagnon v. Scarpelli, 411 U.S. 778, 782
(1973) (probation revocation); Morrissey v. Brewer, 408 U.S. 471, 480-82 (1972) (parole
revocation). These minimum protections include, among other things, written notice of
the claimed violation. See Morrissey, 408 U.S. at 489; cf. Fed. R. Crim. P. 32.1(b)(2)
(incorporating minimum due process protections). We review de novo whether the
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process actually afforded a criminal defendant comports with these minimum
requirements. See generally United States v. Tsosie, 376 F.3d 1210, 1213 (10th Cir.
2004) (applying de novo standard of review to question of law arising in connection with
revocation of defendant’s supervised release).
After examining the record on appeal, we conclude Stevens’ arguments are
meritless. When the district court revoked Stevens’ initial terms of supervised release on
May 30, 2002, it sentenced her to 18 months’ imprisonment and 18 months’ supervised
release on each of the original counts of conviction, with the sentences to run
concurrently. Significantly, the district court imposed identical conditions of supervision
(both standard conditions and additional conditions) with respect to each term of
supervised release. Thus, when the probation office filed its pleading on January 5, 2004,
alleging Stevens had violated several conditions of supervision, Stevens knew or
reasonably should have known the alleged violations implicated not just one term of
supervised release, but all three terms. Although it is true, as asserted by Stevens, that the
pleading filed by the probation office erroneously stated she was serving a “term” of
supervised release at the time of the alleged violations, there is no dispute that the
pleading filed by the probation office provided Stevens with adequate notice of her
alleged misconduct, and it is likewise uncontroverted that Stevens ultimately admitted the
truth of those allegations. In sum, we conclude the pleading filed by the probation office
satisfied the minimum due process requirement of providing Stevens with notice of the
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alleged violations, and in turn Stevens knew or reasonably should have known that the
district court could revoke all three terms of supervised release if it found the alleged
violations to be true.
Even if we were to assume the pleading filed by the probation office was
inadequate to satisfy the minimum due process standards, it is apparent that any resulting
error was harmless. See Fed. R. Crim. P. 52(a) (indicating “[a]ny error . . . that does not
affect substantial rights must be disregarded”); see generally United States v. Walker, 117
F.3d 417, 420-21 (9th Cir. 1997) (holding due process violations related to revocation of
supervised release were subject to harmless error review). As noted, Stevens was
convicted of three separate criminal violations, sentenced to concurrent terms of
imprisonment and supervised release on those convictions, and her admitted conduct
violated the conditions of each of the terms of supervised release. Thus, Stevens knew or
reasonably should have known that each of the terms of supervised release could (and
indeed would) be revoked if the district court determined she violated the conditions of
her terms of supervised release. Moreover, we note that Stevens fails to discuss what she
would have done differently if the pleading filed by the probation office had correctly
indicated she was serving multiple terms of supervised release rather than a single “term.”
Judicial estoppel
Stevens contends the government should be judicially estopped from arguing that
she violated, and thus is subject to revocation of, multiple terms of supervised release. In
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support of this argument, Stevens asserts the probation office and the prosecution have
repeatedly and consistently treated her “terms of supervised release as a single unit,
presumably since they were related.” Aplt. Br. at 7.
The doctrine of “[j]udicial estoppel bars a party from adopting inconsistent
positions in the same or related litigation.” United States v. 162 MegaMania Gambling
Devices, 231 F.3d 713, 726 (10th Cir. 2000) (internal quotations omitted). In other
words, it “generally prevents a party from prevailing in one phase of a case on an
argument and then relying on a contradictory argument to prevail in another phase.” New
Hampshire v. Maine, 532 U.S. 742, 749 (2001) (internal quotations omitted).
Although this circuit has historically rejected application of the doctrine, see 162
MegaMania, 231 F.3d at 726, the Supreme Court in New Hampshire recently indicated it
is applicable in federal court. 532 U.S. at 749-51. According to the Court, “several
factors typically inform the decision whether to apply the doctrine [of judicial estoppel] in
a particular case.” Id. at 750. “First, a party’s later position must be ‘clearly inconsistent’
with its earlier position.” Id. “Second, courts regularly inquire whether the party has
succeeded in persuading a court to accept that party’s earlier position, so that judicial
acceptance of an inconsistent position in a later proceeding would create the perception
that either the first or the second court was misled.” Id. (internal quotations omitted). “A
third consideration is whether the party seeking to assert an inconsistent position would
derive an unfair advantage or impose an unfair detriment on the opposing party if not
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estopped.” Id. at 751.
This court has not addressed the appropriate standard for reviewing a district
court’s decision of whether to apply the doctrine of judicial estoppel. This is most likely
because, as noted, we have historically rejected application of the doctrine. The majority
of circuits that have addressed the standard of review question, however, have adopted an
abuse of discretion standard. See Alternative Sys. Concepts, Inc. v. Synopsys, Inc., 374
F.3d 23, 30-31 (1st Cir. 2004); Jaffe v. Accredited Sur. & Cas. Co., 294 F.3d 584, 595 n.7
(4th Cir. 2002); In re Coastal Plains, Inc., 179 F.3d 197, 205 (5th Cir. 1999); Talavera v.
Sch. Bd. of Palm Beach County, 129 F.3d 1214, 1216 (11th Cir. 1997); McNemar v.
Disney Store, Inc., 91 F.3d 610, 616-17 (3d Cir. 1996); Data Gen. Corp. v. Johnson, 78
F.3d 1556, 1565 (Fed. Cir. 1996); United States v. Garcia, 37 F.3d 1359, 1367 (9th Cir.
1994); see also Leonard v. Southwestern Bell Corp. Disability Income Plan, 341 F.3d
696, 700 (8th Cir. 2003) (discussing, but ultimately finding it unnecessary to decide, what
standard of review to apply); but see Eubanks v. CBSK Fin. Group, Inc., 385 F.3d 894,
897 (6th Cir. 2004) (applying a de novo standard).
We need not decide here which standard of review should apply because Stevens’
judicial estoppel argument would fail under either standard. A review of the record on
appeal indicates the government has not, in fact, taken inconsistent positions in Stevens’
case. At worst, the government has, at times, carelessly and erroneously referred to
Stevens serving a “term” of supervised release rather than correctly noting she has at all
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times served three concurrent terms of supervised release. Notably, however, there is no
indication that these errors have operated in the government’s favor or to the detriment of
Stevens. Nor has Stevens established how recognition of the true facts would unfairly
operate to her detriment. In sum, none of the relevant factors cited by the Supreme Court
in New Hampshire are present in this case.
AFFIRMED.
Entered for the Court
Mary Beck Briscoe
Circuit Judge
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