United States v. Eddy Lamas

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 05-15555 AUGUST 10, 2006
Non-Argument Calendar THOMAS K. KAHN
CLERK
________________________
D. C. Docket No. 00-00458-CR-KMM
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
EDDY LAMAS,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(August 10, 2006)
Before TJOFLAT, BLACK and PRYOR, Circuit Judges.
PER CURIAM:
Eddy Lamas appeals his sentence of nine months of imprisonment for
violating the conditions of his supervised release. Lamas argues that he was not
notified in writing of the charge against him in violation of due process. Because
any consideration by the district court of facts not alleged in the written notice to
Lamas was not plain error, we affirm.
On November 30, 2000, Lamas was sentenced to five years of probation for
the unlawful possession of access device-making equipment, a charge to which he
pleaded guilty. 18 U.S.C. § 1029(a)(4). Lamas violated the conditions of his
supervised release four times between March 30, 2001, and February 24, 2005,
and, on each occasion, Lamas was sentenced to a term of incarceration and an
additional period of supervised release. One condition of Lamas’s supervised
release arising from his violation on February 24, 2005, was that Lamas maintain
regular employment at a lawful occupation.
On August 29, 2005, Nora Burgos, Lamas’s probation officer, filed a
petition with the district court that alleged, “Since on or about July 7, 2005, the
defendant has failed to work regularly as required.” At Lamas’s hearing, Burgos
testified that she had given Lamas permission to work at his wife’s business in
March 2005. Burgos testified that between June 7 and July 7, 2005, she visited
Lamas’s purported workplace four times, but on each visit found the office was
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closed or Lamas was not present, and Lamas did not object to this testimony.
Burgos stated that, on July 7, 2005, she instructed Lamas to find employment
through an employment agency. Burgos testified that Lamas told her he contacted
the agency and was informed they had no openings, but when Burgos called the
agency, she was told that the agency schedules an interview for each applicant who
calls.
Lamas testified that he was not currently employed, but had been employed
at his wife’s office. Lamas stated that he was not at the office when Burgos visited
because he often took his wife or his brother to medical appointments during the
workday. Lamas also denied being instructed to contact the employment agency.
The district court found Burgos to be credible and rejected the testimony of
Lamas. The district court based this decision, in part, on the testimony of Burgos
that Lamas had not been present at his wife’s office on her four visits there from
June 7 to July 7, 2005. The district court found Lamas in violation of the
conditions of his supervised release based on his “failure to work regularly at a
lawful occupation since July 7.”
This Court reviews the finding that a defendant violated the terms of his
supervised release for abuse of discretion. United States v. Copeland, 20 F.3d 412,
413 (11th Cir. 1994). When, as here, the defendant raises an argument for the first
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time on appeal, we reverse only for plain error. United States v. Aguillard, 217
F.3d 1319, 1320 (11th Cir. 2000). “For this Court to correct plain error: (1) there
must be error; (2) the error must be plain; and (3) the error must affect substantial
rights.” Id. Even if the three requirements are satisfied, “we will exercise our
discretion to rectify the error only if it seriously affects the fairness, integrity, or
public reputation of judicial proceedings.” United States v. Peters, 403 F.3d 1263,
1271 (11th Cir. 2005) (internal quotation omitted).
Lamas argues that the district court violated due process when it considered
evidence that he was not employed before July 7, 2005, because the petition
alleged only that he was not employed since “on or about July 7, 2005.” One
requirement of due process to punish a violation of the conditions of supervised
release is “written notice of the claimed violations.” Morrissey v. Brewer, 408
U.S. 471, 489, 92 S. Ct. 2593, 2604 (1972). We need not address whether the
district court erroneously considered evidence that Lamas was unemployed before
July 7, 2005, because any error was not plain.
The prosecution presented evidence sufficient to support a finding that
Lamas was unemployed after July 7, 2005. Burgos testified that Lamas had
misinformed her about contacting the employment agency, and Lamas admitted
during his testimony that he was currently unemployed. Lamas’s only evidence
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that he was employed was limited to his purported employment at his wife’s office
before July 7, 2005. Because the evidence was sufficient to support a finding that
Lamas was unemployed after July 7, 2005, consideration of evidence that Lamas
was unemployed before July 7, 2005, did not affect his substantial rights and was
not plain error.
AFFIRMED.
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