United States v. Ray Lenoir , 616 F. App'x 759 ( 2015 )

Case: 14-60543 Document: 00513212208 Page: 1 Date Filed: 09/29/2015
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
No. 14-60543
Fifth Circuit
FILED
Summary Calendar September 29, 2015
Lyle W. Cayce
UNITED STATES OF AMERICA, Clerk
Plaintiff-Appellee
v.
RAY CHARLES LENOIR,
Defendant-Appellant
Appeal from the United States District Court
for the Northern District of Mississippi
USDC No. 1:98-CR-121-1
Before KING, CLEMENT, and OWEN, Circuit Judges.
PER CURIAM: *
Ray Charles Lenoir pleaded guilty of receiving stolen checks and
possessing with the intent to distribute cocaine base. He was sentenced to a
term of imprisonment and a five-year term of supervised release, which
commenced in 2010. In 2014, the district court revoked Lenoir’s supervised
release, imposed a six-month term of imprisonment, and ordered an additional
three-year term of supervised release. Lenoir appeals that decision.
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
Case: 14-60543 Document: 00513212208 Page: 2 Date Filed: 09/29/2015
No. 14-60543
Lenoir argues that the district court violated his due process rights by
failing to make written findings explaining its decision to revoke his release.
See Morrissey v. Brewer, 408 U.S. 471 (1972); United States v. Ayers, 946 F.2d
1127, 1129 (5th Cir. 1991). In particular, he complains that the court made no
finding that he violated standard condition 11, which required him to notify
his probation officer within 72-hours of any contact with law enforcement.
Lenoir did not raise his argument in the district court. Accordingly, we
will review the issue for plain error only. See United States v. Whitelaw, 580
F.3d 256, 260 (5th Cir. 2009). To demonstrate plain error, Lenoir must show
a forfeited error that is clear or obvious and that affects his substantial rights.
See Puckett v. United States, 556 U.S. 129, 135 (2009). We have the discretion
to correct such an error but only if it affects the fairness, integrity, or public
reputation of judicial proceedings. Id.
At the revocation hearing, the district court found that Lenoir had
violated more than one condition of his release by hiding his income in an
attempt to avoid paying restitution and taking out loans without prior
approval of the probation officer. 1 That oral finding was sufficient to satisfy
the procedural process due. See United States v. Copeland, 20 F.3d 412, 414-
15 (1994). Although the district court did not make a finding that Lenoir
violated standard condition of release number 11, Lenoir’s other violations
provided an adequate basis for the revocation of his supervised release. See
United States v. McCormick, 54 F.3d 214, 219 n.3 (5th Cir. 1995). Lenoir has
not shown error, plain or otherwise.
1 In making that statement, the district court implicitly found Lenoir guilty of
violating standard condition three, requiring Lenoir to truthfully answer the probation
officer’s questions pertaining to his employment; standard condition six, requiring Lenoir to
notify the probation officer prior to any change in his employment; special condition 15,
requiring Lenoir to provide the probation officer with any requested financial information;
and special condition 16, prohibiting Lenoir from obtaining credit without approval of his
probation officer unless he was in compliance with his restitution payments.
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No. 14-60543
In his opening brief, Lenoir asserts that the evidence was insufficient to
support the district court’s revocation decision. However, he has waived any
challenge he might have raised by failing to adequately brief the issue.
See United States v. Scroggins, 599 F.3d 433, 446-47 (5th Cir. 2010).
In his reply brief, Lenoir asserts that the evidence was insufficient to
support the district court’s finding that he violated special condition 16, which
prohibited him from opening new lines of credit. We will not consider the issue
because Lenoir did not raise it in his opening brief. See United States v. Prince,
868 F.2d 1379, 1386 (5th Cir. 1989).
We also will not consider Lenoir’s challenge to the restitution provisions
in the original judgment. A defendant may not challenge his underlying
conviction or original sentence on appeal from the revocation of his supervised
release. See United States v. Willis, 563 F.3d 168, 170 (5th Cir. 2009).
Lenoir has, however, identified errors in the revocation judgment which
require correction. The judgment incorrectly indicates that Lenoir “admitted
guilt” of violating standard condition 11, which required him to notify his
probation officer of any contact with law enforcement. Lenoir neither admitted
that violation nor was found guilty of the violation by the district court. Also,
the judgment incorrectly indicates that Lenoir “admitted guilt” of violating
standard conditions three and six and special conditions 15 and 16. Lenoir did
not admit those violations. The district court found Lenoir guilty of the
violations after a hearing. Accordingly, we remand this case to the district
court for correction of those clerical errors pursuant to Federal Rule of
Criminal Procedure 36.
AFFIRMED; REMANDED FOR CORRECTION OF CLERICAL
ERRORS IN JUDGMENT.
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