UNITED STATES v. OG TY KP (2021)

SUMMARY ORDER

Defendant-Appellant Shaun Brooks appeals from a judgment in the United States District Court for the Southern District of New York, revoking his supervised release and sentencing him primarily to thirty-six months in prison, to be followed by two years of supervised release.

In 2017, while on supervised release, Brooks was charged by the United States Probation Office with violating multiple mandatory conditions of his release, including failing to report for drug testing multiple times and using marijuana, cocaine, and other controlled substances. Over the next several years, Brooks was charged with other violations and the District Court convened several status conferences and hearings. After a final sentencing hearing, the District Court concluded that Brooks violated several conditions of his supervised release, all of which were Grade C violations under the United States Sentencing Guidelines (“U.S.S.G.”) and to all of which Brooks admitted guilt, and imposed the statutory maximum term of imprisonment of thirty-six months, to be followed by three years of supervised release.¹ We assume the parties’ familiarity with the underlying facts, the procedural history of the case, and the issues on appeal.

On appeal, Brooks primarily asserts that his due process rights were violated because, he argues, his revocation sentence was based on incidents of which he did not receive notice or opportunity to challenge. “Due process requires ․ that a defendant charged with violating a condition of supervised release be afforded notice of the charges against him before the court may revoke his supervised release.”² Such “notice must be sufficient to allow the releasee to prepare to defend against the charges.”³

Because Brooks did not raise an objection on this basis before the District Court, we review his claim for plain error.⁴ The burden of showing plain error rests on the party asserting it.⁵ “Plain error is: (i) error, that is (ii) plain, and (iii) affects substantial rights. Where these conditions are met, an appellate court may then exercise its discretion to notice a forfeited error, but only if ․ the error seriously affects the fairness, integrity, or public reputation of judicial proceedings.”⁶

We reject Brooks's due process challenge to his revocation sentence. The District Court made clear that Brooks was being held responsible for the violations to which Brooks admitted, which did not include the June 9, 2019 and the October 9, 2019 incidents, as the written judgment also confirms. As to the June 9, 2019 incident, Brooks had sufficient constitutional notice that it might be discussed at sentencing. Indeed, the Probation Office referenced the incident in the memorandum provided to the District Court and the Government mentioned it at a status conference, in addition to giving the related reports to defense counsel.⁷ Brooks also had sufficient opportunity to challenge information related to both the June 9, 2019 and the October 9, 20219 incidents. As a final matter, Brooks's conduct underlying Specification 7—on which the Government ultimately did not proceed and for which Brooks accordingly was not sentenced —was included in the Amended Violation Report and Brooks did in fact challenge information related thereto. In sum, Brooks's revocation sentence for Class C violations of his supervised release was not imposed in violation of his due process rights.

CONCLUSION

We have reviewed all other arguments raised by Brooks on appeal and find them to be without merit. For the foregoing reasons, we AFFIRM the judgment of the District Court entered April 8, 2020.

FOOTNOTES

1.   Under the U.S.S.G., a Grade C violation of supervised release is defined as “conduct constituting (A) a federal, state, or local offense punishable by a term of imprisonment of one year or less; or (B) a violation of any other condition of supervision.” U.S.S.G. § 7B1.1(a)(3).

2.   United States v. Chatelain, 360 F.3d 114, 121 (2d Cir. 2004).

3.   Id.

4.   See Puckett v. United States, 556 U.S. 129, 134–35, 129 S.Ct. 1423, 173 L.Ed.2d 266 (2009).

5.   United States v. Dominguez Benitez, 542 U.S. 74, 82, 124 S.Ct. 2333, 159 L.Ed.2d 157 (2004); United States v. Turner, 720 F.3d 411, 427 (2d Cir. 2013).

6.   United States v. Rodriguez, 725 F.3d 271, 276 (2d Cir. 2013) (quoting United States v. Vaval, 404 F.3d 144, 151 (2d Cir. 2005)).

7.   See also Chatelain, 360 F.3d at 122 (finding revocation defendant received adequate notice when details of alleged violative conduct were provided not in the petition but “in advance of the revocation hearing”).