United States v. Miguel Arellano , 645 F. App'x 235 ( 2016 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 15-4444
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
MIGUEL ELOIZA ARELLANO,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte. Frank D. Whitney,
Chief District Judge. (3:00-cr-00212-FDW-2)
Submitted: March 30, 2016 Decided: April 13, 2016
Before WILKINSON, WYNN, and THACKER, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Matthew Collin Joseph, Charlotte, North Carolina, for Appellant.
Jill Westmoreland Rose, United States Attorney, Anthony J.
Enright, Assistant United States Attorney, Charlotte, North
Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Miguel Eloiza Arellano appeals the revocation of his
supervised release and resulting 30-month sentence. Arellano
argues that the district court erred in denying his motion to
dismiss the “Petition for Warrant for Offender Under
Supervision,” alleging he was deprived of due process when the
hearing was not held within a “reasonable time” as required by
Fed. R. Crim. P. 32.1(b)(2). We affirm.
Due process requires that a revocation hearing “be tendered
within a reasonable time after the parolee is taken into
custody” for violating the conditions of parole. Morrissey v.
Brewer, 408 U.S. 471, 488 (1972). The same protections granted
those facing parole revocation are extended to those facing the
revocation of supervised release. Fed. R. Crim. P. 32.1(b);
United States v. Copley, 978 F.2d 829, 831 (4th Cir. 1992). The
Supreme Court has also stated that, because “the loss of liberty
as a parole violator does not occur until the parolee is taken
into custody,” there is “no constitutional duty to provide [the
parolee] an adversary parole hearing until he is taken into
custody as a parole violator.” Moody v. Daggett, 429 U.S. 78,
87-89 (1976).
Rule 32.1 requires that a court “hold the revocation
hearing within a reasonable time in the district court having
jurisdiction.” Fed. R. Crim. P. 32.1(b)(2). Arellano argues
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that a “delay of approximately six (6) years and seven (7)
months between the filing of the petition and a final supervised
release hearing was not within a ‘reasonable time’” as required
under . . . Rule 32.1(b)(2) particularly when [his] whereabouts
were known the entire time.”
The Government contends Arellano did not have a
constitutional right to an adversarial hearing until he was
taken into custody pursuant to the alleged violation. Indeed,
the execution of a warrant for a parole violation and the taking
into federal custody of the parole violator “is the operative
factor in triggering the availability of the revocation hearing”
required by Morrissey. See Moody, 429 U.S. at 87-89. Other
circuits also have concluded that the revocation hearing
required by Rule 32.1(b) must be held within a reasonable time
after the offender is taken into federal custody for violating
the conditions of his probation or supervised release. See
United States v. Pardue, 363 F.3d 695, 698 (8th Cir. 2004)
(“Rule 32.1 exists to protect the probationer from undue federal
incarceration and to protect the probationer’s ability to defend
the violation allegations. . . . Because of Pardue’s pending
state charges, no undue federal incarceration occurred.”);
United States v. Chakledar, 987 F.2d 75, 77 (1st Cir. 1993)
(“[T]here is ‘no constitutional duty to provide petitioner an
adversary parole hearing until he is taken into custody as a
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parole violator.’” (quoting Moody, 429 U.S. at 89)); McDonald v.
N. M. Parole Bd., 955 F.2d 631, 633 (10th Cir. 1991) (noting
“hearing requirements and time limitations” applicable to a
final revocation hearing “must be adhered to only after the
parolee is taken into custody as a parole violator”). Arellano
points to no legal authority holding otherwise.
Arellano was taken into custody pursuant to the Petition on
March 25, 2015. After making an initial appearance on April 15,
he appeared for a preliminary hearing before a magistrate judge
on April 20, 2015. His supervised release hearing was held on
July 7, 2015. Arellano does not argue, nor do we find, that the
time between being taken into federal custody on the violation
until the hearing was unreasonable under Rule 32.1(b)(2).
Accordingly, we affirm the judgment. We dispense with oral
argument because the facts and legal contentions are adequately
presented in the materials before this court and argument would
not aid the decisional process.
AFFIRMED
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