United States v. Lorenzo Tucker ( 2018 )

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FILED
FOR THE NINTH CIRCUIT
DEC 21 2018
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
UNITED STATES OF AMERICA, No. 17-10146
Plaintiff-Appellee, D.C. No.
2:08-cr-00025-KJD-CWH-1
v.
LORENZO TUCKER, MEMORANDUM*
Defendant-Appellant.
Appeal from the United States District Court
for the District of Nevada
Kent J. Dawson, District Judge, Presiding
Submitted December 18, 2018**
San Francisco, California
Before: CALLAHAN, N.R. SMITH, and MURGUIA, Circuit Judges.
After a jury verdict, Lorenzo Tucker was sentenced to 96 months of
imprisonment and 3 years of supervised release for unlawful possession of a
firearm by a previously convicted felon. During his supervised release, the
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
Probation Department submitted multiple petitions alleging that Tucker violated
the terms of his release. Following a contested revocation hearing, the district
court found that Tucker committed all of the alleged violations, except one of the
alleged incidents of child abuse, and sentenced him to 18 months’ imprisonment
followed by 18 months’ supervised release.
On appeal, Tucker claims that the government violated his due process
rights by not providing adequate notice of the new crimes that he committed while
on supervised release. We review de novo a defendant’s claim of insufficient
notice in violation of the due process rights incorporated by Fed. R. Crim. P. 32.1.
United States v. Havier, 155 F.3d 1090, 1092 (9th Cir. 1998). A due process
violation at a revocation proceeding is also subject to harmless error analysis. See,
e.g., United States v. Walker, 117 F.3d 417, 420–21 (9th Cir. 1997). We have
jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742, and we affirm.1
The government likely provided Tucker with adequate notice of the alleged
violations. The petitions stated the charged offenses—child abuse and
forgery—and included a detailed description of the alleged violations including
dates and locations. Unlike the situation in Havier, 155 F.3d at 1093, on which
1
Because the parties are familiar with the factual and procedural
history of the case, we need not recount it here.
2
Tucker relies, here, the notice identified the specific offenses. See United States v.
Tham, 884 F.2d 1262, 1265 (9th Cir. 1989).
Moreover, even if there were some deficiency in the notice provided to
Tucker, he has failed to show any prejudice. See Walker, 117 F.3d at 420–21
(holding that “to warrant relief, Walker must show that he was prejudiced by the
trial court’s error”). At his initial appearance, the district court asked Tucker if he
understood one of the charges against him was that he “committed the crime of
child abuse by beating [his] son with a belt,” to which Tucker responded: “Okay. I
understand that’s the charge in the petition.” As to the forgery charge, the petition
clearly alleged that Tucker filed and signed an “Affidavit for Dismissal” which
contained the purported signature of his probation officer, and the district court
found that Tucker had intended to defraud. At the revocation hearing, defense
counsel was able to argue that the petition failed to allege the specific statutes he
violated with respect to child abuse and forgery. Tucker has not explained what he
would have done differently had he received written notice of the specific statutes.
If there was error, it was harmless.
The district court’s revocation of Tucker’s supervised release is
AFFIRMED.
3