UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_____________________
No. 94-10265
Summary Calendar
_____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
VERSUS
LEE MURRAY TIPPENS,
Defendant-Appellant.
____________________________________________________
Appeals from the United States District Court
for the Northern District of Texas
(4:89-CR-145-K c/w 4:89-CR-201-K(1))
_____________________________________________________
(November 21, 1994)
Before JONES, BARKSDALE, and BENAVIDES, Circuit Judges.
PER CURIAM:
Lee Murray Tippens appeals the denial of his motion to dismiss
a petition for revocation of his supervised release. We AFFIRM.
I.
After being indicted in August and September 1989, Tippens
pled guilty in January 1990 to violation of 18 U.S.C. §§ 1029(a)(2)
(unauthorized use of an access device) and 4343 (wire fraud). The
district court sentenced him in March 1990 to concurrent 24 month
terms of imprisonment on each count, and a three year term of
supervised release. One of the conditions of the supervised
release was that Tippens would not commit another federal, state,
or local crime. He was released from custody in May 1991.
That August, while on supervised release, Tippens pled guilty,
in Texas state court, to the charge of forgery by possession of a
check with intent to pass and was sentenced to a 20 year term of
imprisonment. That same month, the district court issued a warrant
for Tippens' arrest for violation of the supervised release
condition. The government, however, did not execute the warrant at
that time.1 On February 11, 1994, Tippens was released from state
custody and delivered to federal custody as a result of the
violator's warrant.
The government subsequently moved to revoke Tippens'
supervised release based on his state offense. In response,
Tippens moved to dismiss the motion. In March 1994, the district
court denied Tippens' motion; it then ruled that Tippens had
violated the conditions of his supervised release by committing the
state offense and sentenced him to 24 months imprisonment.
II.
Tippens challenges the denial of his motion to dismiss the
motion to revoke, not the revocation. He bases his challenge on
the nearly 30 month delay in the execution of the violator's
warrant, which he asserts violated the Fourth, Fifth, and Sixth
Amendments.2
1
At the subsequent hearing on revocation of supervised release,
Tippens' probation officer testified that the violator's warrant
was not executed because Tippens was serving the state 20 year
sentence.
2
Although Tippens claims a Fourth Amendment violation, he did
not brief the issue. Accordingly, he has waived that challenge.
E.g., United States v. Miller, 666 F.2d 991, 998 n.6 (5th Cir.),
cert. denied, 456 U.S. 964 (1982).
- 2 -
A.
Tippens contends that the 30 month delay violated his Sixth
Amendment right to a speedy trial. Reliance on the right to a
speedy trial is misplaced. Our court has held that the right to a
speedy trial is not applicable to probation and parole revocation
hearings, because they are not stages of a criminal prosecution.
United States v. Williams, 558 F.2d 224, 226 (5th Cir. 1977)
(quoting Gagnon v. Scarpelli, 411 U.S. 778, 782 (1973)).
Furthermore, we have stated unequivocally that "[s]upervised
release revocation hearings are not criminal proceedings." United
States v. Marmolejo, 915 F.2d 981, 983 (5th Cir. 1990).
Tippens does not challenge the timeliness of his hearing
following his arrest; as stated, he contests only the timeliness
with which the violator's warrant was executed. Although this
court has not addressed this issue directly, it is sufficiently
similar to the above referenced cases to compel the same result.
We hold that the execution of a warrant for violation of supervised
release is not subject to the Sixth Amendment's speedy trial
requirement. See Moody v. Daggett, 429 U.S. 78 (1976).
B.
Nevertheless, speedy trial cannot be completely divorced from
the array of rights embraced by the Fifth Amendment's due process
clause. Williams, 558 F.2d at 226. Persons on supervised release
have procedural due process rights in the context of revocation
hearings. United States v. Ayers, 946 F.2d 1127, 1129 (5th Cir.
1991) (citing Morrissey v. Brewer, 408 U.S. 471, 489 (1972)).
- 3 -
Therefore, Tippens' contention that the 30 month delay violated the
Fifth Amendment's due process clause needs to be considered
separately.
Probationers and parolees have virtually identical
constitutional due process rights in revocation hearings. Gagnon,
411 U.S. at 783. Our court has recognized that a delay in
executing a violator's warrant may frustrate a probationer's due
process rights if the delay undermines his ability to contest the
issue of the violation or to proffer mitigating evidence.
Williams, 558 F.2d at 226-28. Tippens has not asserted such
prejudice, but maintains instead that had the warrant been executed
when issued, he could have served the federal and state sentences
concurrently. This court rejected a similar argument in United
States v. Fisher, 895 F.2d 208, 211 (5th Cir.), cert. denied, 495
U.S. 940 (1990), as did the Supreme Court in Moody. In Moody, the
Court ruled that a parolee is not constitutionally entitled to a
revocation hearing immediately upon the issuance of the violation
warrant; even when the warrant has remained outstanding for more
than ten years, no right to a revocation hearing accrues until the
warrant has been executed and the parolee taken into custody.
Moody, 429 U.S. at 87-89.
Tippens has not been prejudiced by the delay. It did not
impair his ability to contest the revocation. And, the district
court had the ability "to grant, retroactively, the equivalent of
concurrent sentences." Moody, 429 U.S. at 87; see Fisher, 895 F.2d
at 211; U.S.S.G. Ch. 7, Pt. A, intro. comment. 2(b) ("When the
- 4 -
court finds that the defendant violated a condition of supervised
release, it may continue the defendant on supervised release, with
or without extending the term or modifying the conditions ....").3
III.
For the foregoing reasons, the judgment is
AFFIRMED.
3
Relying upon Morrissey and Moody, Tippens contends also that
he was entitled to speedy notice of the filing of the allegations
for revocation of his supervised release. Only upon arrest,
however, is the liberty interest of the due process clause
triggered. Moody, 429 U.S. at 87 ("we established execution of the
warrant and custody under that warrant as the operative event
triggering any loss of liberty attendant upon parole revocation.")
- 5 -