United States v. Matthew Fuller ( 2018 )

United States Court of Appeals
For the Eighth Circuit
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No. 17-1442
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United States of America
lllllllllllllllllllllPlaintiff - Appellee
v.
Matthew Peter Fuller
lllllllllllllllllllllDefendant - Appellant
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Appeal from United States District Court
for the District of South Dakota - Pierre
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Submitted: March 12, 2018
Filed: June 6, 2018
[Unpublished]
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Before GRUENDER, BEAM, and KELLY, Circuit Judges.
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PER CURIAM.
Matthew Fuller appeals the revocation of his supervised release. While on
supervision following his conviction for participating in a drug conspiracy, Fuller
tested positive for drugs. The district court1 ordered the probation office to prepare
a supplemental presentence investigation report, which was delivered one day before
the revocation hearing. At the hearing, the district court revoked Fuller’s supervised
release and sentenced him to 7 months in custody, followed by 18 months of
supervised release. Fuller filed this appeal. While the appeal was pending, Fuller
served his time and began his supervised release. Again Fuller tested positive for
drugs; the district court again revoked supervised release and returned Fuller to
custody, where he is today.
We begin with jurisdiction. The government suggests that the lawfulness of
Fuller’s first revocation is moot because Fuller would have ended up back in custody
no matter what. We disagree. Though we are “without power to decide questions
that cannot affect the rights of litigants,” North Carolina v. Rice, 404 U.S. 244, 246
(1971), such is not the case here. Fuller is currently in custody for the revocation of
his second term of supervised release, which was imposed as part of the sentence
Fuller contests in this appeal. Therefore, Fuller is still suffering the adverse
consequences of his first revocation, which means there is still a case or controversy
for us to adjudicate. See Lewis v. Cont’l Bank Corp., 494 U.S. 472, 477 (1990). The
government’s motion to dismiss this appeal is denied.
Turning to the merits, Fuller argues that the district court violated the
procedural requirements of Fed. R. Crim. P. 32(e)(2) and the Due Process Clause by
imposing sentence just a day after the completion of the supplemental presentence
investigation report. Fuller raised neither of these issues below, so we review only
for plain error. “Under plain error review, the defendant must show: (1) an error; (2)
that is plain; and (3) that affects substantial rights.” United States v. Vaughn, 519
1
The Honorable Roberto A. Lange, United States District Judge for the District
of South Dakota.
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F.3d 802, 804 (8th Cir. 2008). “A plain error is one that is clear or obvious under
current law.” United States v. Lovelace, 565 F.3d 1080, 1092 (8th Cir. 2009).
We conclude that Fuller has not established plain error as to either Rule 32 or
the Due Process Clause. Fuller argues only that his revocation sentence was unlawful
because it was imposed a short time after the probation office provided the
supplemental presentence report. Fuller makes no argument that this affected his
substantial rights; he does not assert, for instance, that his sentence would have been
shorter if he had more time to review the presentence report. We also note that it is
not clear or obvious that Rule 32(e)(2) even applies to revocation proceedings. See
United States v. Richey, 758 F.3d 999, 1002 n.3 (8th Cir. 2014) (declining to answer
the “difficult question” of whether Rule 32(e)(2) applies at revocation).
There was no plain error, so we affirm the judgment of the district court.
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