USCA11 Case: 20-14369 Date Filed: 05/20/2021 Page: 1 of 10
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 20-14369
Non-Argument Calendar
________________________
D.C. Docket No. 2:15-cr-00017-MHT-KFP-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
MICHAEL ALBERT FOCIA,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Alabama
________________________
(May 20, 2021)
Before JORDAN, ROSENBAUM, and GRANT, Circuit Judges.
PER CURIAM:
USCA11 Case: 20-14369 Date Filed: 05/20/2021 Page: 2 of 10
Michael Albert Focia, proceeding pro se, brings this appeal after the district
court revoked his supervised release and sentenced him to nine months in prison.
See
18 U.S.C. § 3583(e)(3). He raises manifold constitutional and legal challenges
to the revocation proceedings, none of which have merit. We therefore affirm.
I.
In June 2015, a federal jury found Focia guilty of three offenses involving the
unlicensed sale of firearms. See
18 U.S.C. § 922(a)(1)(A), (5). In December 2015,
the district court sentenced him to a total of 51 months in prison, to be followed by
three years of supervised release. We affirmed Focia’s convictions and sentence on
appeal. United States v. Focia,
869 F.3d 1269 (11th Cir. 2017).
On October 18, 2018, a probation officer petitioned the district court to revoke
Focia’s supervised release for failure to report to the probation office as ordered after
he was released from prison on October 5, 2018. The district court ultimately
revoked Focia’s supervised release on December 18, 2018, imposing a sentence of
six months in prison to be followed by two years of supervised release.
Focia was released from prison a second time on May 21, 2019. Nearly a year
later, on April 21, 2020, a probation officer again petitioned the district court to
revoke his supervised release. According to the probation officer, Focia had refused
to answer questions on his monthly supervision report or provide any information
about his employment, both of which were conditions of his release. The court set
2
USCA11 Case: 20-14369 Date Filed: 05/20/2021 Page: 3 of 10
a hearing and issued a summons for Focia to appear. When the U.S. Marshals
attempted to serve the summons at Focia’s residence, however, they discovered he
had moved out without providing the notice required by the conditions of his release.
The district court permitted the probation officer to amend the revocation petition to
include that new violation, and it issued a warrant for Focia’s arrest.
After his arrest, Focia appeared in front of a magistrate judge in the Southern
District of Mississippi on August 31, 2020. The magistrate judge described the
violations alleged in the petition, gave Focia a copy of the petition, and informed
him of his right to counsel. Focia elected to proceed pro se. After hearing testimony
from government witnesses, one of whom Focia cross-examined, the magistrate
judge found that there was sufficient evidence to believe that Focia had violated his
probation and ordered him detained and returned to the Middle District of Alabama,
the district where he was originally convicted and sentenced.
The district court held a final revocation hearing on November 12, 2020, in a
holding cell at the jail because Focia refused to wear a mask as required by court
rules because of the COVID-19 pandemic. Focia, proceeding pro se with stand-by
counsel, objected to the proceedings being held there and to being handcuffed, which
he said violated the presumption of innocence. The court noted that he could simply
wear a mask, but he refused. So it continued with the hearing.
3
USCA11 Case: 20-14369 Date Filed: 05/20/2021 Page: 4 of 10
The government called Focia’s probation officer to testify as to his alleged
violations of the conditions of release, and it offered evidence of his refusal to answer
questions on the monthly supervision reports. Focia testified in his defense,
admitting that he did not cooperate with the probation officer but claiming that it
was against his sincerely held religious beliefs. He also raised or renewed various
other objections to the validity of the revocation proceedings, many constitutional
and some purportedly based in “contract.” 1
The district court sustained the three violations, citing the government’s
evidence and Focia’s testimony, and overruled Focia’s objections. The guideline
range was three to nine months in prison, and the government recommended nine
months with no supervision to follow. Focia objected that the maximum sentence
was three months because, in his view, the 60-month statutory maximum penalty for
his underlying convictions capped the total amount of time he could serve in relation
to this case. The court rejected Focia’s understanding of the effect of the statutory
maximum, revoked his supervised release, and sentenced him to nine months in
prison with no supervised release to follow. Focia now appeals.
II.
1
Focia espouses views consistent with those of so-called “sovereign citizens,” “who
believe they are not subject to the jurisdiction of the courts.” United States v. Sterling,
738 F.3d
228, 233 n.1 (11th Cir. 2013). Courts have “rejected their legal theories as frivolous.”
Id.
4
USCA11 Case: 20-14369 Date Filed: 05/20/2021 Page: 5 of 10
We review de novo legal and constitutional challenges to a sentence imposed
upon revocation of supervised release. United States v. Cunningham,
607 F.3d 1264,
1266 (11th Cir. 2010); United States v. Pla,
345 F.3d 1312, 1313 (11th Cir. 2003).
In general, sentencing courts may “include as a part of the sentence a
requirement that the defendant be placed on a term of supervised release after
imprisonment.”
18 U.S.C. § 3583(a). Supervised release “may be imposed in
addition to the statutory maximum term of imprisonment.” United States v. English,
589 F.3d 1373, 1376 (11th Cir. 2009) (quoting United States v. Cenna,
448 F.3d
1279, 1281 (11th Cir. 2006)) (emphasis in English). If a defendant violates the
conditions of his release, 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.”
18 U.S.C. § 3583(e)(3). Upon imposing a revocation sentence, the court may also
impose a new “term of supervised release after imprisonment,” subject to
limitations.
18 U.S.C. § 3583(h).
III.
Focia offers a scattershot collection of legal and constitutional assertions. For
clarity, we attempt to group his claims around common themes.
A.
First, Focia claims that his nine-month sentence is illegal because, when
combined with the underlying prison sentence and the prior revocation sentence, it
5
USCA11 Case: 20-14369 Date Filed: 05/20/2021 Page: 6 of 10
exceeds the 60-month statutory maximum sentence for his crimes. In his view, the
supervised-release hearing “infringe[d] the ex post facto clause” by allowing
“perpetual supervised release” for a crime with a maximum sentence of 60 months.
He also suggests that the court violated “fair notice,” “separation of powers,” and
“double jeopardy” by sentencing him beyond the 60 months Congress authorized.
These arguments are misguided. “Federal law,
18 U.S.C. § 3583(e), allows
the reimprisonment of defendants who violate conditions of supervised release even
when they were initially sentenced to the statutory maximum term.” Andrews v.
Warden,
958 F.3d 1072, 1080 (11th Cir. 2020); see also United States v. Proctor,
127 F.3d 1311, 1313 (11th Cir. 1997). Thus, Focia’s nine-month revocation
sentence is lawful even if that sentence, combined with the time he previously
served, exceeded the statutory maximum for the underlying firearms offenses.2
More broadly, Focia’s ex post facto challenge fails because the district court
did not apply any law retroactively, let alone one that raised the penalty for his
conduct. See Johnson v. United States,
529 U.S. 694, 1800 (2000) (stating that an
ex post facto violation occurs if a law operates retroactively and “raises the penalty
from whatever the law provided when he acted”). The relevant law that applied
when Focia violated the conditions of his supervised release, or even when he was
2
While largely beside the point, we note that Focia was convicted of three offenses, each
carrying a statutory maximum of 60 months in prison. So, technically, the statutes of convictions
authorized a total sentence of up to 180 months in prison, well beyond what Focia will serve.
6
USCA11 Case: 20-14369 Date Filed: 05/20/2021 Page: 7 of 10
originally sentenced in 2015, has not changed. And it plainly authorized the district
court to both impose a new term of supervised release after the initial revocation,
and to reimprison Focia, even in excess of the underlying statutory maximum, upon
revoking his release a second time. 3 See
18 U.S.C. §§ 3583(e), 3583(h); Andrews,
958 F.3d at 1080. We therefore reject Focia’s “fair notice” and “separation of
powers” arguments as well. Finally, a revocation sentence does not violate the
Double Jeopardy Clause because it is not a “successive punishment” for the same
offense, United States v. Woods,
127 F.3d 990, 991 (11th Cir. 1997), but rather a
“part of the penalty for the initial offense,” Johnson,
529 U.S. at 1800; see also
United States v. Whitney,
649 F.2d 296, 298 (5th Cir. June 1981) (declining “to
extend the double jeopardy clause to parole and probation revocation proceedings”).
B.
Second, Focia challenges the district court’s handling of the supervised-
release proceedings. He contends that the court violated due process by failing to
hold a preliminary hearing, to inform him of the nature of the charges, and to allow
3
Focia’s concern about “perpetual supervised release” is misplaced. It’s not a relevant
concern here because the district court declined to impose an additional term of supervision. Also,
terms of supervised release have their own statutory maximums, see
18 U.S.C. § 3583(b), and in
cases of repeat terms of supervised release, the court must subtract from the relevant maximum
any prison time served for a revocation sentence. See
18 U.S.C. § 3583(h) (stating that the length
of a term of supervised release following a revocation sentence “shall not exceed the term of
supervised release authorized by statute for the offense that resulted in the original term of
supervised release, less any term of imprisonment that was imposed upon revocation of supervised
release.”).
7
USCA11 Case: 20-14369 Date Filed: 05/20/2021 Page: 8 of 10
him to “present evidence in private chambers that would have closed the case.” He
further asserts that the court violated the Speedy Trial Act, his right to a public jury
trial, his confrontation rights, and his presumption of innocence.
The Supreme Court has held that a defendant facing revocation of parole is
entitled to certain minimal due-process protections, including the following: (1)
written notice of the claimed violations; (2) disclosure of the evidence against him;
(3) an opportunity to be heard in person, and to present witnesses and documentary
evidence; (4) the right to confront and cross-examine adverse witnesses; (5) a neutral
and detached hearing body; and (6) “a written statement by the factfinders as to the
evidence relied on and reasons for revoking parole.” Morrissey v. Brewer,
408 U.S.
471, 488–89 (1972). We have held that the Morrissey requirements also apply to
the revocation of supervised release, United States v. Copeland,
20 F.3d 412, 414
(11th Cir. 1994), and these protections have been incorporated into Fed. R. Crim. P.
32.1, see United States v. Frazier,
26 F.3d 110, 114 (11th Cir. 1994).
Here, Focia’s revocation proceedings satisfied due process and Rule 32.1.
The record shows, among other things, that (a) Focia received written notice of the
charges at the preliminary hearing following his arrest in Mississippi; (b) Focia was
informed of his right to counsel and elected to proceed pro se; (c) he was detained
pending the final hearing based on evidence presented at the preliminary hearing, at
which he was present and able to cross-examine witnesses; (d) he appeared in person
8
USCA11 Case: 20-14369 Date Filed: 05/20/2021 Page: 9 of 10
for the final revocation hearing, was again informed of the charges, and was able to
cross-examine the government’s witnesses and present evidence in his defense; and
(e) the district court explained its reasons for revoking his supervised release based
on evidence presented at the hearing. Focia has no right to “present evidence in
private chambers,” nor does he explain how this evidence “would have closed the
case.” And given Focia’s refusal to wear a mask in court, as required by court rules,
we see no constitutional violation in the court’s decision to hold the hearing in the
jail’s holding cell to accommodate Focia’s sincerely held religious beliefs.4
In demanding protections beyond what he was afforded, Focia improperly
treats revocation proceedings as equivalent to a criminal trial. But in Cunningham,
we held that § 3583(e)(3), the provision governing revocation proceedings, does not
violate the Fifth Amendment right to due process or the Sixth Amendment right to a
jury trial.
607 F.3d at 1268. “[T]he violation of supervised release need only be
proven by a preponderance of the evidence, and there is no right to trial by jury in a
supervised release revocation hearing.”
Id. Because Focia “was properly accorded
the limited procedural safeguards to which he was entitled under § 3583(e)(3),” id.,
we reject his arguments relating to the conduct of the proceedings.
4
That Focia was handcuffed at the hearing, which took place at the jail, does not present a
constitutional concern in this case because a defendant can be shackled for security reasons and
Focia was not seen by a jury. See Deck v. Missouri,
544 U.S. 622, 626–29 (2005) (recognizing
that shackling a defendant in front of a jury during the guilt phase of a trial violates a defendant’s
due process rights and presumption of innocence absent any special need for the shackles).
9
USCA11 Case: 20-14369 Date Filed: 05/20/2021 Page: 10 of 10
C.
Finally, Focia suggests that supervised release unconstitutionally restrains his
freedom and privacy. In Focia’s view, the conditions of his supervised release
infringed his First Amendment rights, his rights to privacy, and his right to be free
from slavery and from cruel and unusual punishment.
Of course, it’s true that supervised release limited Focia’s freedom and
privacy, but that alone does not make it unlawful, despite what he may believe.
Focia did not stand in the shoes of an ordinary citizen. He had already been
convicted of several crimes, which we affirmed on appeal; he was lawfully
sentenced to supervised release following his prison term; and upon his release he
“was granted only conditional liberty, the existence of which depend[ed] on
[Focia’s] observation of the limits of his supervised release.” Cunningham,
607 F.3d
at 1268. He was not entitled to disregard the conditions of his release without
consequence simply because he disagreed with them. And the conditions Focia
violated were relatively minor reporting requirements; they were not “more onerous
than prison” or comparable to “involuntary servitude,” as he asserts.
IV.
In sum, we affirm the district court’s revocation of Focia’s supervised release
and the nine-month revocation sentence.
AFFIRMED.
10
