United States v. Richardson ( 2008 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
May 15, 2008
No. 07-51002
Summary Calendar Charles R. Fulbruge III
Clerk
UNITED STATES OF AMERICA
Plaintiff-Appellee
v.
MICHAEL JOE RICHARDSON, also known as Michael Richardson
Defendant-Appellant
Appeal from the United States District Court
for the Western District of Texas
USDC No. 6:04-CR-56-ALL
Before JONES, Chief Judge, and PRADO and ELROD, Circuit Judges.
PER CURIAM:*
Michael Joe Richardson appeals the district court’s revocation of his
probation. He argues that the district court plainly erred in treating an arrest
as a violation of probation. Richardson asserts that his substantial rights were
affected “because he was sent to prison on a finding of a mere arrest.” He
further asserts that the error was not harmless because it is unclear from the
record that the district court would have revoked his probation based solely on
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion
should not be published and is not precedent except under the limited
circumstances set forth in 5TH CIR. R. 47.5.4.
No. 07-51002
allegation three, a mere technical violation. Richardson requests this court to
find that allegation one, the arrest for the theft by check charge, does not
constitute a violation of probation. If this court so finds, he further requests that
this court remand his case for a determination of whether the district court
would have revoked his probation based solely on allegation three.
The district court may revoke a defendant’s probation if it finds that the
defendant violated a condition of the probation by a preponderance of the
evidence. See United States v. Teran, 98 F.3d 831, 836 (5th Cir. 1996). This
court generally reviews the district court’s decision for an abuse of discretion.
Id. When, as here, the defendant does not raise any objections to the revocation
proceeding in the district court, review of any potential claims raised in
connection with the proceeding is for plain error. See United States v. Byrd,
116 F.3d 770, 772 (5th Cir. 1997); see also United States v. Magwood, 445 F.3d
826, 828 (5th Cir. 2006) (supervised release revocation). To establish plain error,
Richardson must show: (1) error; (2) that is clear or plain; (3) that affects his
substantial rights; and (4) that seriously affects the fairness, integrity or public
reputation of judicial proceedings. United States v. Vasquez, 216 F.3d 456, 459
(5th Cir. 2000).
The judgment states that a mandatory condition of Richardson’s probation
was that he “shall not commit another federal, state, or local crime.” At the
hearing the district court heard testimony from Richardson’s probation officer
regarding the arrest for theft by check. According to the probation officer, on
August 30, 2005, Richardson wrote a “hot check” for $48.00 to HEB. The
probation officer stated that Richardson admitted to writing the check. At the
conclusion of the hearing, the district court found the allegation regarding the
arrest to be “true.” The district court did not plainly err or abuse its discretion
in revoking Richardson’s probation based on his arrest for theft by check. See
United States v. Evers, 534 F.2d 1186, 1188 (5th Cir. 1976). Accordingly, the
judgment of the district court is AFFIRMED.
2