United States v. Gray , 299 F. App'x 432 ( 2008 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
November 17, 2008
No. 07-60934
Summary Calendar Charles R. Fulbruge III
Clerk
UNITED STATES OF AMERICA
Plaintiff-Appellee
v.
MIMS GRAY
Defendant-Appellant
Appeal from the United States District Court
for the Southern District District of Mississippi
USDC No. 1:01-CR-137-1
Before JONES, Chief Judge, and STEWART and OWEN, Circuit Judges.
PER CURIAM:*
In 2002, Mims Gray pleaded guilty to possession with intent to distribute
crack cocaine, in violation of 21 U.S.C. § 841(a)(1), and was sentenced to 70
months in prison and four years of supervised release. Gray was released from
custody in November 2006. Four months later, in March 2007, Gray was
arrested for possession with intent to distribute cocaine. Based on this conduct,
the district court revoked Gray’s supervised release and sentenced him to 36
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 07-60934
months of imprisonment, with no further supervised release to follow. Gray now
appeals that revocation decision.
A district court may revoke a defendant’s supervised release if it finds by
a preponderance of the evidence that a condition of release has been violated.
United States v. McCormick, 54 F.3d 214, 219 (5th Cir. 1995). This court reviews
for abuse of discretion a decision to revoke supervised release. Id. Questions of
constitutional violations are reviewed de novo. See United States v. Webster, 162
F.3d 308, 333 (5th Cir. 1998). For the first time on appeal, Gray argues that he
was denied due process because the revocation notice he received alleged that
he possessed a controlled substance but the district court based its decision on
possession with intent to distribute a controlled substance. Because Gray had
the opportunity to make this objection to the district court but did not, our
review is for plain error. See United States v. Green, 324 F.3d 375, 381 (5th Cir.
2003). Under the plain error standard, the appellant must show: (1) that there
is an error; (2) that the error is clear or obvious; and (3) that the error affects his
substantial rights. See United States v. Olano, 507 U.S. 725, 731-37 (1993). If
these factors are established, the decision to correct the forfeited error is within
the court’s sound discretion, which will not be exercised unless the error
seriously affects the fairness, integrity, or public reputation of judicial
proceedings. Id. at 736.
Due process generally requires written notice of alleged violations,
Morrissey v. Brewer, 408 U.S. 471, 489 (1972); United States v. Holland, 850
F.2d 1048, 1050-51 (5th Cir. 1988) (probation revocation); FED. R. CRIM. P. 32.1.
Gray does not dispute that he received written notice of the alleged violation.
Gray argues, rather, that the notice he received was insufficient.
Gray’s arguments that he received inadequate notice are unpersuasive.
One of the mandatory conditions of Gray’s supervision was that he not “illegally
possess a controlled substance.” Another standard condition provided that Gray
“shall not purchase, possess, use, distribute, or administer any controlled
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No. 07-60934
substance.” Gray was notified that he violated these conditions of release when
he was arrested in Gulfport for cocaine possession. The notice specifically
detailed that Gray was arrested by the Gulfport Police Department Narcotics
Division on March 14, 2007, and that Gray was in possession of 84 grams of
cocaine when he was arrested.
The petition for arrest warrant further stated that “[b]ecause this arrest
just occurred yesterday evening, no official arrest report is available as of this
writing.” The officers’ testimony during Gray’s revocation hearing expanded
upon the information contained in the petition. Indeed, one of the officers
testified that after Gray was arrested, Gray acknowledged he was being charged
with possession with intent to distribute. Moreover, Gray admitted that he was
on his way to deliver three ounces of cocaine when the police stopped him.
Our review of the record establishes that Gray had adequate notice of his
alleged controlled substance violation which formed the basis of the revocation
and of the evidence against him. That the judgment mentioned 21 U.S.C. § 841
in the judgment was immaterial to the notice or result of the revocation
proceeding. Gray has failed to demonstrate error, plain or otherwise, with
regard to the process he received in connection with the revocation of his
supervised release. See McCormick, 54 F.3d at 221.
AFFIRMED.
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