UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 10-4316
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
MICHAEL B. MARTISKO,
Defendant – Appellant.
Appeal from the United States District Court for the Northern
District of West Virginia, at Clarksburg. Irene M. Keeley,
District Judge. (1:07-cr-00104-IMK-3)
Submitted: September 23, 2010 Decided: October 20, 2010
Before SHEDD and WYNN, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
Tracy Weese, Shepherdstown, West Virginia, for Appellant. Betsy
C. Jividen, United States Attorney, Zelda E. Wesley, Assistant
United States Attorney, Clarksburg, West Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Michael B. Martisko appeals the eight-month sentence
imposed following the district court’s revocation of his term of
supervised release. Martisko’s counsel filed a brief pursuant
to Anders v. California, 386 U.S. 738 (1967), asserting that
there are no meritorious grounds for appeal but questioning
whether the district court erred in denying Martisko the
opportunity to allocute and in failing to conduct a Federal Rule
of Criminal Procedure 11 (“Rule 11”) colloquy at the revocation
hearing. Martisko was advised of his right to file a pro se
supplemental brief, but he has not done so. Finding no
reversible error, we affirm.
Counsel first argues that the district court erred in
denying Martisko the opportunity to allocute. Because Martisko
did not raise this objection in the district court, we review
for plain error. United States v. Muhammad, 478 F.3d 247, 249
(4th Cir. 2007). To demonstrate plain error, a defendant must
show that: (1) there was an error; (2) the error was plain; and
(3) the error affected his “substantial rights.” United
States v. Olano, 507 U.S. 725, 732 (1993). Nonetheless, even if
the defendant’s substantial rights are affected, we are not
required to correct a plain error unless “‘a miscarriage of
justice would otherwise result,’” id. at 736 (quoting United
States v. Young, 470 U.S. 1, 15 (1985)), meaning that “the error
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‘seriously affect[s] the fairness, integrity or public
reputation of judicial proceedings.’” Id. (quoting United
States v. Atkinson, 297 U.S. 157, 160 (1936)).
Before imposing sentence upon revocation of supervised
release, the district court must give the defendant “an
opportunity to make a statement and present any information in
mitigation.” Fed. R. Crim. P. 32.1(b)(2)(E). Our review of the
record leads us to conclude that the district court plainly
erred in failing to allow Martisko the opportunity to speak in
mitigation. We conclude, however, that the error did not affect
Martisko’s substantial rights. See Muhammad, 478 F.3d at 249
(“[A] defendant [is] not prejudiced by the denial of allocution
when there was no possibility that he could have received a
shorter sentence.”).
Martisko also argues that the district court erred by
failing to conduct a Rule 11 plea colloquy to ensure his
admissions to the supervised release violations were voluntary.
However, given the nature of revocation proceedings, “the full
panoply of procedural safeguards associated with a criminal
trial” are not required during such proceedings, and Rule 11 is
inapplicable. Black v. Romano, 471 U.S. 606, 613 (1985); see
United States v. Stehl, 665 F.2d 58, 59-60 (4th Cir. 1981)
(holding that Rule 11 is not applicable to probation revocation
proceedings). Moreover, because Martisko clearly admitted to a
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number of the violations as set out in the petitions for
revocation without protest, we conclude that there was
sufficient evidence to support the district court’s revocation.
In accordance with Anders, we have reviewed the record
in this case and have found no meritorious issues for appeal.
We therefore affirm the district court’s judgment and deny
counsel’s motion to withdraw. This court requires that counsel
inform Martisko, in writing, of his right to petition the
Supreme Court of the United States for further review. If
Martisko requests that a petition be filed, but counsel believes
that such a petition would be frivolous, counsel may move in
this court for leave to withdraw from representation. Counsel’s
motion must state that a copy thereof was served on Martisko.
We dispense with oral argument because the facts and legal
conclusions are adequately presented in the materials before the
court and argument would not aid the decisional process.
AFFIRMED
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