United States v. Steven Toy ( 2012 )

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 12a0089n.06
No. 11-3105
UNITED STATES COURT OF APPEALS
FILED
FOR THE SIXTH CIRCUIT
Jan 25, 2012
LEONARD GREEN, Clerk
UNITED STATES OF AMERICA, )
)
Plaintiff-Appellee, ) ON APPEAL FROM THE
) UNITED STATES DISTRICT
v. ) COURT FOR THE SOUTHERN
) DISTRICT OF OHIO
STEVEN TOY, )
)
Defendant-Appellant. )
Before: COOK, McKEAGUE, and ROTH,* Circuit Judges.
PER CURIAM. Steven Toy appeals through counsel a district court judgment revoking his
term of supervised release.
In 2002, Toy was convicted of possession with intent to distribute more than fifty kilograms
of marijuana. He was sentenced to twenty-seven months of imprisonment and three years of
supervised release. In June 2007, Toy was arrested on a warrant for violating the terms of his
supervised release. He moved to dismiss the charges because some of the paperwork in his file
indicated that his term of supervised release began in April 2004, which would render the June 2007
warrant outside the term of supervised release. However, the district court found that Toy’s
supervised release term actually commenced in July 2004, as indicated by his records from the
* The Honorable Jane R. Roth, Senior Circuit Judge for the United States Court of Appeals
for the Third Circuit, sitting by designation.
No. 11-3105
United States v. Toy
Bureau of Prisons. Therefore, the motion to dismiss was denied. In January 2011, a hearing was
held on the alleged violations. Toy admitted violating the term of supervised release that prohibited
him from incurring further criminal convictions, by being convicted of disorderly conduct, attempted
insurance fraud, and several traffic violations. He argued, however, that the hearing was unduly
delayed and the violations should be dismissed. The district court disagreed with the argument
regarding undue delay, noting that the delay was caused by Toy’s commission of several state crimes
and his failure to report his whereabouts. The district court revoked the period of supervised release
and ordered Toy to serve twelve months of imprisonment consecutive to a lengthy state prison term
he had incurred after the expiration of his supervised release term.
On appeal, Toy repeats his argument that the district court lacked jurisdiction to revoke his
supervised release because some of his records indicate that his term of supervised release
commenced in April 2004, and the warrant for his arrest was not issued until June 2007. He also
reasserts his claim that the hearing on his revocation was untimely.
The district court’s determination that it had jurisdiction to revoke Toy’s supervised release
is reviewed de novo. See United States v. Goins, 516 F.3d 416, 419 (6th Cir. 2008). The district
court correctly determined that it had jurisdiction to revoke Toy’s supervised release, because his
records from the Bureau of Prisons show that his term of supervised release commenced in July 2004
and the warrant was issued within three years of that date.
Toy argues that there was undue delay between his arrest in June 2007 and his revocation
hearing in January 2011. The delay was due to Toy’s commission of new state offenses and his
failure to report his whereabouts. Moreover, Toy fails to show any prejudice because he does not
argue that the delay affected his ability to defend the charges, which he admitted. See United States
-2-
No. 11-3105
United States v. Toy
v. Madden, 515 F.3d 601, 607 (6th Cir. 2008). Although Toy argues that the delay allowed the
district court to sentence him consecutively to his new state term of imprisonment, this court has held
that a delay that affects the ability to serve sentences concurrently does not constitute prejudice. See
United States v. Throneburg, 87 F.3d 851, 853 (6th Cir. 1996).
Accordingly, we find Toy’s arguments without merit and affirm the district court’s judgment.
-3-