United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT October 22, 2003
Charles R. Fulbruge III
Clerk
No. 03-10140
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
VERNON DWAINE TAYLOR,
Defendant-Appellant.
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Appeal from the United States District Court
for the Northern District of Texas
USDC No. 4:97-CR-129-ALL-Y
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Before KING, Chief Judge, and JOLLY and STEWART, Circuit Judges.
PER CURIAM:*
Vernon Dwaine Taylor appeals the district court’s judgment
revoking his supervised release and sentencing him to 24 months’
imprisonment. Taylor argues that the district court erred by not
inquiring on the record whether he was knowingly, intelligently
and voluntarily pleading true to the alleged supervised release
violations, thus extending the protections afforded to criminal
defendants in FED. R. CRIM. P. 11 and Boykin v. Alabama, 395 U.S.
238 (1969) to supervised release revocation proceedings. Taylor
*
Pursuant to 5TH CIR. R. 47.5, the court has determined
that this opinion should not be published and is not precedent
except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
No. 03-10140
-2-
concedes that this issue is foreclosed by this court’s precedent
in United States v. Johns, 625 F.2d 1175, 1176 (5th Cir. 1980),
and he states that he is raising the issue solely to preserve it
for possible future review.
Taylor did not object in the district court to the district
court’s failure to follow the procedures in Boykin and FED. R.
CRIM. P. 11. Accordingly, any error on the part of the district
court in failing to follow those procedures is reviewed for plain
error. See United States v. Calverley, 37 F.3d 160, 162–64
(5th Cir. 1994) (en banc).
In Johns, 625 F.2d 1175 at 1176, this court held that
FED. R. CRIM. P. 11 is inapplicable to probation revocation
hearings. The issue whether the district court should have
complied with FED. R. CRIM. P. 11 at Taylor’s probation revocation
hearing is foreclosed by Johns. Thus, Taylor fails to
demonstrate that the district court erred by not complying with
FED. R. CRIM. P. 11.
This court has not yet addressed the issue whether Boykin
is applicable to probation revocation hearings. See Johns,
625 F.2d at 1176. Given the lack of controlling authority in
this circuit on this issue, any error by the district court
with regard to Boykin was not clear or obvious and, therefore,
does not meet the plain-error standard. The Government has
filed a motion to dismiss the appeal or to summarily affirm the
No. 03-10140
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judgment without further briefing. The motion to dismiss the
appeal is DENIED. The motion for summary affirmance is GRANTED.
AFFIRMED.