United States v. Chad Burcham , 91 F. App'x 820 ( 2004 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.  No. 03-4714
CHAD MCKINLEY BURCHAM,
Defendant-Appellant.

Appeal from the United States District Court
for the Western District of North Carolina, at Statesville.
Carl Horn, III, Magistrate Judge.
(CR-03-17)
Submitted: December 5, 2003
Decided: January 13, 2004
Before WIDENER, WILLIAMS, and MICHAEL, Circuit Judges.
Affirmed by unpublished per curiam opinion.
COUNSEL
Aaron E. Michel, Charlotte, North Carolina, for Appellant. Robert J.
Conrad, Jr., United States Attorney, Jennifer Marie Hoefling, Assis-
tant United States Attorney, Charlotte, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
2 UNITED STATES v. BURCHAM
OPINION
PER CURIAM:
Chad McKinley Burcham appeals the district court’s judgment
revoking his twelve-month term of supervised release and sentencing
him to twelve months’ imprisonment. The petition for revocation
alleged that Burcham: (1) committed four new law violations; and (2)
failed to report contact with law enforcement officers to his probation
officer. Finding no error, we affirm.
Burcham argues that the district court lacked subject matter juris-
diction to hold a revocation hearing because the warrant for revoca-
tion was issued after the expiration of his supervised release term.
Because Burcham raised this argument for the first time on appeal, we
review it for plain error. United States v. Olano, 507 U.S. 725, 732
(1993). A court may revoke a term of supervised release after the
supervised release term expires "if, before its expiration, a warrant or
summons has been issued on the basis of an allegation of . . . a viola-
tion." 18 U.S.C. § 3583(i) (2000).
The warrant for revocation of supervised release was issued on July
29, 2003. Burcham claims that his twelve-month term of imprison-
ment commenced on May 30, 2001, expiring no later than May 30,
2002. Therefore, he argues that his term of supervised release expired
on May 30, 2003. Burcham apparently relies upon the sentencing
court’s statement that "[i]f possible, the defendant shall receive credit
for time he has served while in custody in South Carolina beginning
May 30, 2001." Nonetheless, district courts are not authorized to com-
pute credit for time spent in official detention when sentencing a con-
vict. United States v. Wilson, 503 U.S. 329, 333 (1992). It is the
responsibility of the Attorney General, through the Bureau of Prisons
("BOP"), to determine when a sentence commences and whether a
defendant should receive credit for time previously spent in custody.
Id. at 335. The BOP’s Notice of Release indicates that Burcham was
released from custody on August 12, 2002. Burcham cannot challenge
in this action the BOP’s notice of release and decision not to award
him credit because he has not exhausted his administrative remedies.
United States v. Mitchell, 845 F.2d 951 (11th Cir. 1988). Thus, we are
bound to conclude that his supervised release term expired on August
UNITED STATES v. BURCHAM 3
12, 2003. Therefore, the July 29, 2003 warrant for revocation was
filed before the expiration of Burcham’s term of supervised release,
thereby preserving jurisdiction in the district court.
Burcham next argues that the district court erred by conducting the
revocation hearing during the pendency of state criminal proceedings
regarding the alleged new law violations in contravention of the
Younger abstention doctrine.1
The Younger abstention doctrine is appropriate only in those cases
where: (1) there is an ongoing state judicial proceeding; (2) the pro-
ceeding implicates important state interests; and (3) there is an ade-
quate opportunity to present the federal claims in the state proceeding.
Employers Res. Mgmt. Co., Inc. v. Shannon, 65 F.3d 1126, 1134 (4th
Cir. 1995). "Younger abstention does not apply to federal criminal
prosecutions." United States v. Geiger, 263 F.3d 1034, 1040 (9th Cir.
2001) Because supervised release revocation hearings are similar to
federal criminal prosecutions, Younger does not apply to them. More-
over, even assuming its applicability, Burcham fails to meet the third
element of the Shannon test for invoking Younger abstention. Because
there would not be an adequate opportunity to resolve the federal
issue of the propriety of revoking Burcham’s term of supervised
release in the state criminal proceedings, the district court properly
declined to abstain under Younger. See Shannon, 65 F.3d at 1134.
Burcham further argues that the evidence was insufficient to sup-
port the district court’s finding that Burcham violated the terms of his
supervised release. Because Burcham raised this argument for the first
time on appeal, we review it for plain error. Olano, 507 U.S. at 731-
32. In order to revoke a defendant’s term of supervised release, the
district court must find by a preponderance of the evidence that the
defendant violated a condition of supervised release. United States v.
Copley, 978 F.2d 829, 831 (4th Cir. 1992). We find that the district
court did not plainly err because sufficient evidence supported his
finding that Burcham violated the terms of his supervised release. Id.1
In Younger v. Harris, 401 U.S. 37 (1971), the Supreme Court held
that a federal court should not enjoin a pending state criminal proceeding
except in the very unusual situation when an injunction is necessary to
prevent great and immediate irreparable injury.
4 UNITED STATES v. BURCHAM
Finally, Burcham argues that his due process rights were violated
in two respects. First, he alleges that the probation officer and the
magistrate judge engaged in ex parte communications, denying him
a fair hearing before a neutral and impartial judge. Contrary to Bur-
cham’s contention, the transcript of the revocation hearing reveals
that these conversations occurred in open court in the presence of
both Burcham and his counsel. Thus, they were not ex parte commu-
nications.
Burcham also alleges that his due process rights were violated by
the magistrate judge’s failure to make specific written findings to sup-
port his decision. Because Burcham raised this argument for the first
time on appeal, we review it for plain error. Olano, 507 U.S. 731-32.
"[A] transcribed oral finding can serve as a ‘written statement’ for due
process purposes when the transcript and record compiled before the
trial judge enable the reviewing court to determine the basis of the
trial court’s decision." Copley, 978 F.2d at 831. The district court
stated as follows: "I’m doing this because you do have 114 prior con-
victions before all these current offenses. Those convictions are in 12
different counties in North Carolina [and are] of a very similar sort
to the ongoing criminal activity." (J.A. at 36-7.) This transcribed oral
finding, coupled with Burcham’s admission to the violations, enables
us to review the basis of the district court’s finding that Burcham
committed new violations of law by a preponderance of the evidence.
For these reasons, the district court possessed jurisdiction to hold
a revocation hearing, properly declined to abstain under the Younger
doctrine, did not plainly err by revoking Burcham’s term of super-
vised release, and did not violate Burcham’s due process rights.2
2
Nothing in this opinion prevents Burcham from immediately pursuing
an administrative challenge to BOP’s decision not to credit the time he
spent in state custody against his federal sentence or to pursue whatever
other remedies he may have pursuant to 18 U.S.C. § 3585(b). We note
that § 3585(b) states that "a defendant shall be given credit" for previous
time served if the time served satisfies the statutory requirements. 18
U.S.C.A. § 3585(b) (West 2000). Although the Attorney General,
through the BOP, is responsible for awarding credit for time served,
"prisoners have been able to seek judicial review of these computations
after exhausting their administrative remedies." United States v. Wilson,
503 U.S. 329, 335 (1992).
UNITED STATES v. BURCHAM 5
Accordingly, we affirm the district court’s judgment revoking Bur-
cham’s term of supervised release and sentencing him to twelve
months’ imprisonment. We dispense with oral argument because the
facts and legal contentions are adequately presented in the materials
before the court and argument would not aid the decisional process.
AFFIRMED