FILED
United States Court of Appeals
Tenth Circuit
July 20, 2017
UNITED STATES COURT OF APPEALS Elisabeth A. Shumaker
Clerk of Court
TENTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 16-7046
DAVID BRIAN MAGNAN, (D.C. No. 6:14-CR-00016-RAW)
(E.D. Okla.)
Defendant - Appellant.
ORDER AND JUDGMENT *
Before BRISCOE, McKAY, and BALDOCK, Circuit Judges. **
In January 2000, Defendant David Magnan, a Native American, pleaded guilty
in federal district court to arson in violation of 18 U.S.C. §§ 1153 & 81, and simple
assault in violation of 18 U.S.C. §§ 1153 & 113. The district court sentenced
Defendant to twenty-five months in prison and five years of supervised release. On
March 2, 2004, while on supervised release, Defendant was arrested in Oklahoma
and charged with murdering three individuals and attempting to murder a fourth. On
*
This order and judgment is not binding precedent except under the doctrines
of law of the case, res judicata, and collateral estoppel. It may be cited, however,
for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
**
After examining defense counsel’s Anders brief and the appellate record,
this panel has determined unanimously that oral argument would not materially assist
the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G).
This case is therefore ordered submitted without oral argument.
May 13, 2004, in response to the state charges, the Government filed a petition to
revoke Defendant’s supervised released. Defendant was subsequently convicted
(pursuant to a plea of guilty), and sentenced to death in Oklahoma state court
because prosecutors mistakenly believed the residence where the murders occurred
was located outside Indian Country. The federal petition to revoke his supervised
release was never adjudicated, presumably because Defendant had been continuously
in state custody and sentenced to death. On federal habeas review, we vacated
Defendant’s state convictions and sentence for want of state court subject matter
jurisdiction. Magnan v. Trammell, 719 F.3d 1159 (10th Cir. 2013).
Shortly thereafter, in July 2013, the Government charged Defendant with three
counts of murder in Indian Country in violation of 18 U.S.C. § 1153. Around that
time, state officials transferred custody of Defendant to federal authorities. On April
22, 2014, the Government filed an amended petition to revoke Defendant’s
supervised release. Following a trial in October 2015, a jury found Defendant guilty
on all three murder counts. In May 2016, immediately after sentencing Defendant
to three consecutive life sentences, see United States v. Magnan, No. 16-7043, slip
op. (10th Cir. July 20, 2017) (affirming federal murder convictions), the district
court held a revocation hearing. Taking notice of the facts presented at his murder
trial, see id. at 2–10, the court found by a preponderance of the evidence that
Defendant had violated the terms of his supervised release. The court sentenced
Defendant to thirty-six months in prison, to be served consecutive to his three life
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sentences. Defendant appeals. We exercise jurisdiction pursuant to 28 U.S.C.
§ 1291. Now before us is the assistant federal public defender’s Anders brief
accompanied by his motion to withdraw as counsel. See Anders v. California, 386
U.S. 738 (1967).
Counsel represents that he finds nothing in the court records or applicable law
that arguably might justify reversal of Defendant’s supervised release revocation.
Neither do we. Only one point counsel makes is even worthy of discussion. Counsel
points out that at his revocation hearing, Defendant objected on the basis that the
delay in the hearing violated his right to due process. According to counsel,
Defendant’s “objection stems from the twelve year delay in the original filing of the
petition to vacate his supervised release and the hearing taking place.” Anders Brief
at 6. To be sure, “the conditional freedom of a parolee generated by statute is a
liberty interest protected by the Due Process Clause.” Moody v. Daggett, 429 U.S.
78, 85 (1976). But importantly, Defendant’s continuous confinement and consequent
loss of liberty since March 2, 2004, the date of the murders, in no sense derive from
the violations of his supervised release. Moreover, given the three life sentences
ultimately imposed upon Defendant for those murders, the prospect that Defendant
will ever be incarcerated as a result of those release violations is highly improbable
to say the least. See id. at 86–87. Because the hearing delay had no present or
inevitable effect on Defendant’s liberty interest, that delay has not deprived him of
anything. See id. at 87; Hough v. Alderden, 236 F. App’x 350, 352 n.2 (10th Cir.
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2007) (recognizing that where a defendant is in custody for a crime independent of
any supervised release violation, he is not, for the time being, entitled to due process
protection because his present confinement derives solely from his separate
conviction quite apart from any supervised release violation).
Accordingly, Defendant’s appeal from the judgment revoking his supervised
release is DISMISSED. Defense counsel’s motion to withdraw is GRANTED as to
appeal no. 16-7046, i.e., so far as it pertains to representation of Defendant on his
supervised release violations.
Entered for the Court,
Bobby R. Baldock
United States Circuit Judge
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