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United States v. Fay

November 12, 2008

UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE,
v.
JAMES LEE FAY, DEFENDANT-APPELLANT.



APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF OKLAHOMA (D.C. No. 4:90-CR-00014-HDC-1).

The opinion of the court was delivered by: Briscoe, Circuit Judge.

PUBLISH

Before BRISCOE, BRORBY, and EBEL, Circuit Judges.

Defendant James Lee Fay appeals the district court's revocation of his supervised release. He also appeals the district court's denial of his request to serve his revocation sentence concurrently with a previously discharged state sentence. We have jurisdiction pursuant to 28 U.S.C. § 1291 and 28 U.S.C. § 3742(a) and affirm.

I.

Fay had been convicted of interstate transportation of a stolen motor vehicle, in violation of 18 U.S.C. § 2312, and, after serving his 60-month sentence, was placed on supervised release. Fay violated the terms of his supervised release when he was found in possession of methamphetamine and two firearms after the car he was driving was pulled over for a traffic violation on January 21, 2006. Fay was arrested and later pleaded guilty to drug and weapon possession charges in Oklahoma state court.

After Fay's arrest on the state charges, the United States Probation Office filed a petition seeking revocation of Fay's supervised release. The petition alleged that Fay violated the terms of his supervised release by his possession of drugs and weapons on January 21, 2006, the same conduct that gave rise to his state convictions. The petition also alleged that on two occasions in 2005 Fay tested positive for methamphetamine. As a result of the petition seeking revocation of Fay's supervised release, a federal detainer was filed against Fay. After Fay completed his state sentence, the state of Oklahoma released Fay into federal custody. At Fay's revocation hearing, the district court found that Fay had violated the conditions of his supervised release. The court revoked Fay's supervised release and imposed a sentence of 21 months of imprisonment.

In his sentencing memorandum filed prior to the revocation hearing, Fay requested that any sentence imposed for violating the terms of his supervised release should run concurrently with his previously completed state sentence, and that "no new prison time" should be imposed. ROA, Vol. I, Doc. 22 at 5. The district court relied on 18 U.S.C. § 3584(a)*fn1 to conclude that it did not have that authority. The court specifically stated:

I don't know of anything that provides [the court with the authority to run a federal sentence concurrently with a completed state sentence] in federal law. In fact, [18 U.S.C. § 3584] speaks only of undischarged terms and we're talking about-you're arguing about a discharged term. And you've got in your Sentencing Guidelines 5G-1.3.*fn2 It all talks about concurrent of discharge [sic]*fn3 terms.

ROA, Vol. II at 4:1-6.

II.

Fay raises two issues on appeal. First, Fay appeals the revocation of his supervised release, arguing that the district court failed to comply with Fed. R. Crim. P. 32.1(b) by finding Fay had violated the conditions of his supervised release without first requiring him to explicitly admit those violations in open court. Fay asserts that he never orally and explicitly admitted that his conduct violated the conditions of his supervised release, nor did the court engage Fay in any formal colloquy as to his guilt or require that the government put on any evidence. Second, Fay appeals the sentence imposed at his revocation hearing. He relies on this court's ruling in United States v. Romero, 511 F.3d 1281 (10th Cir. 2008), to contend that the district court erred in limiting the scope of its sentencing authority. Fay argues that Romero supports his contention that the district court had the authority to sentence him concurrently with his completed state sentence.

A. Admission of Guilt

Fay argues that the district court erred by not requiring him to admit his guilt at his revocation hearing. He did not raise this issue before the district court, so our review is only for plain error. See United States v. Teague, 443 F.3d 1310, 1314 (10th Cir. 2006). Under the plain error doctrine, this court "will reverse the judgment below only if there is (1) error, (2) that is plain, which (3) affects substantial rights, and which (4) ...


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