United States v. Vincent , 273 F. App'x 344 ( 2008 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
April 10, 2008
No. 07-10713
Summary Calendar Charles R. Fulbruge III
Clerk
UNITED STATES OF AMERICA
Plaintiff-Appellee
v.
JEFFREY CLARK VINCENT
Defendant-Appellant
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 4:05-CR-63-ALL
Before SMITH, BARKSDALE, and ELROD, Circuit Judges.
PER CURIAM:*
Jeffrey Clark Vincent pleaded guilty in 1998 to possession of child
pornography, in violation of 18 U.S.C. §§ 2252(a)(4)(B), (b)(2). He was sentenced
to 36 months’ imprisonment and a three-year term of supervised release.
Vincent completed his prison term in 2004 and began serving his term of
supervised release. Later, the Government sought to revoke Vincent’s
*
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should not be published and is not precedent except under the limited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. 07-10713
supervised release, alleging he had violated two special conditions of his
supervised release: failing to participate in a sex-offender treatment program;
and possessing pornographic, sexually oriented, or sexually stimulating
materials.
After a hearing, the district court revoked Vincent’s supervised release,
based on finding he had violated each of the two special conditions. Vincent was
sentenced to 10 months’ imprisonment, to be followed by a 26-month term of
supervised release.
Vincent maintains the district court violated his Fifth Amendment right
against self-incrimination by requiring that he participate in a treatment
program that included polygraph testing as a condition of his supervised release.
Vincent seeks prospective relief from having to comply with the requirement in
his future term of supervised release. In the context of probation, our court has
rejected the same claim that Vincent raises here, holding: required participation
in a treatment program that included polygraph testing as a condition of
probation did not violate the Fifth Amendment. United States v. Locke, 482 F.3d
764, 767-68 (5th Cir. 2007).
Vincent also challenges the revocation of his supervised release, claiming
one of the conditions he was found to have violated was unconstitutionally
vague: the condition prohibiting his possession of “sexually oriented” or
“sexually stimulating” materials. A district court may revoke a term of
supervised release upon a finding, by a preponderance of the evidence, that the
defendant violated a condition of supervised release. 18 U.S.C. § 3583(e)(3).
“Where there is an adequate basis for the district court’s discretionary action of
revoking probation, the reviewing court need not decide a claim of error as to
other grounds that had been advanced as a cause of revocation.” United States
v. English, 400 F.3d 273, 276 (5th Cir. 2005) (internal quotation marks and
citation omitted). As noted, Vincent’s supervised release was revoked not only
because of his having possessed sexually oriented or stimulating materials but
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No. 07-10713
also because the court found Vincent failed to comply with the requirements of
his treatment program. Because Vincent does not challenge this other basis for
the revocation, we can affirm the revocation without reaching the merits of
Vincent’s vagueness claim. See id.Vincent maintains the sentence imposed upon revocation of his supervised
release violates the Sixth Amendment under Apprendi v. New Jersey, 530 U.S.
466 (2000), and United States v. Booker, 543 U.S. 220 (2005), because the
maximum penalty to which he was exposed as a result of the revocation
depended upon a fact not found by a jury. Our court rejected this contention in
United States v. Hinson, 429 F.3d 114, 118-19 (5th Cir. 2005), holding the
principles of Apprendi, as developed in Booker, do not apply to revocations of
supervised release. The term of imprisonment and the term of supervised
release imposed upon revocation were both lawfully within the applicable
statutory maximums. See 18 U.S.C. §§ 2252(a)(4)(B), (b)(2); see also 18 U.S.C.
§§ 3583(e)(3), (h); 18 U.S.C. § 3559(a).
AFFIRMED.
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