United States v. Roger Jones

Case: 11-40841 Document: 00511819199 Page: 1 Date Filed: 04/12/2012
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
April 12, 2012
No. 11-40841
Summary Calendar Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
ROGER WARREN JONES,
Defendant-Appellant
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 2:01-CR-274-1
Before GARZA, SOUTHWICK, and HAYNES, Circuit Judges.
PER CURIAM:*
Roger Warren Jones appeals the district court’s revocation of his
supervised release. Jones argues that the district court’s failure to ascertain
whether his plea of true to the alleged supervise release violations was knowing
and voluntary violated his due process rights. Jones acknowledges that this
court has not decided whether Boykin v. Alabama, 395 U.S. 238 (1969), extends
to revocation hearings. He argues, however, that the “totality of the
circumstances” demonstrates that the plea was not knowing and voluntary and,
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
Case: 11-40841 Document: 00511819199 Page: 2 Date Filed: 04/12/2012
No. 11-40841
as a result, the district court plainly erred by failing to ascertain whether the
plea was knowing and voluntary.
This court has not addressed whether the protections afforded by Boykin
is applicable to revocation hearings. See United States v. Johns, 625 F.2d 1175,
1176 (5th Cir. 1980)(declining to address Boykin’s applicability to probation
revocation proceedings); see also United States v. Pelensky, 129 F.3d 63, 68 (3d
Cir. 1997)(collecting cases). Nor has this court applied a “totality of the
circumstances” test in the context of evaluating the knowing and voluntary
nature of a plea at a revocation hearing. Cf. United States v. Hodges, 460 F.3d
646, 652 (5th Cir. 2006) (applying “totality of the circumstances” test to question
of whether waiver of counsel in a revocation proceeding was knowing and
voluntary). Given the lack of controlling authority on this issue, any error by the
district court with regard to failing to ascertain the knowing and voluntary
nature of the plea was not clear or obvious and, therefore, does not meet the
plain error standard. See United States v. Dupre, 117 F.3d 810, 817 (5th Cir.
1997); see also United States v. Gordon, 87 F. App’x 384 (5th Cir.
2004)(unpublished)(noting that plain error could not be shown when this court
has not applied Boykin to voluntariness of plea in a supervised release
revocation proceeding). Moreover, we note that the record of the revocation
hearing, during which Jones allocuted at some length and admitted his guilt in
his own words,1 reveals no indication of any coercion, incompetence, or
dissatisfaction with counsel. The district court’s judgment is therefore
AFFIRMED.
1
Neither Jones during his allocution, nor his counsel who addressed the court,
referenced any of the allegations made in an earlier-filed pro se motion to dismiss which, by
that time, had been stricken by the district court because Jones was represented by counsel.
2