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United States v. Harris

United States Court of Appeals, Fourth Circuit

December 19, 2017

UNITED STATES OF AMERICA, Plaintiff - Appellee,
v.
MARCUS L. HARRIS, Defendant-Appellant.

          Argued: September 15, 2017

         Appeal from the United States District Court for the Eastern District of Virginia, at Richmond. Robert E. Payne, Senior District Judge. (3:08-cr-00401-REP-1)

         ARGUED:

          Laura Jill Koenig, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Richmond, Virginia, for Appellant.

          Brian R. Hood, OFFICE OF THE UNITED STATES ATTORNEY, Richmond, Virginia, for Appellee.

         ON BRIEF:

          Geremy C. Kamens, Federal Public Defender, Patrick L. Bryant, Appellate Attorney, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Alexandria, Virginia, for Appellant.

          Dana J. Boente, United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Alexandria, Virginia, for Appellee.

          Before SHEDD, AGEE, and FLOYD, Circuit Judges.

          FLOYD, Circuit Judge

         Appellant Marcus L. Harris appeals the revocation of his supervised release. The district court revoked his original term of supervised release for a technical violation, and imposed a second term of supervised release. Soon after, the court revoked Harris's second term of supervised release for a substantive violation. Harris argues that the district court lacked jurisdiction to revoke his second term of supervised release. Assuming the court had jurisdiction, Harris further argues that the revocation sentence exceeded the statutory maximum. Because the district court retained jurisdiction to revoke Harris's supervised release a second time, and properly prescribed the maximum sentence permitted under 18 U.S.C. § 3583(e)(3), we affirm.

         I.

         In 2009, Harris pled guilty to Possession with Intent to Distribute 5 Grams or More of Cocaine Base, a Class B felony under 21 U.S.C. § 841. The district court sentenced Harris to a term of imprisonment and 48 months of supervised release ("original term"). Harris began his original term of supervised release on September 8, 2014. The conditions of the release specified that Harris "shall not commit another federal, state or local crime, " and "shall notify the probation officer within seventy-two hours of being arrested or questioned by a law enforcement officer . . . ." J.A. 20.

         In July 2015, Harris was involved in a traffic stop by the Petersburg Bureau of Police ("PBP"), which led to the discovery of firearms and substances suspected to be drugs, and the execution of two search warrants at his home. Harris failed to report the PBP officers' questioning in connection with the search warrants to his probation officer, but the probation officer eventually learned of the encounter. As a result, on September 3, 2015, the government filed a petition ("original petition") in federal court seeking to revoke Harris's original term of supervised release for two alleged violations: (1) commission of a crime-Possession of a Firearm by a Convicted Felon and (2) commission of a crime-Possession of Controlled Substance.

         While the original petition was pending, on September 24, 2015, Harris was separately arrested by the PBP and charged in state court with murder and use of a firearm in the commission of a felony. The government subsequently filed three addenda to the original petition, indicating that the state investigation of the murder charge was connected to the July traffic stop involving the drugs and firearms. The first addendum alleged that Harris failed to notify his probation officer within 72 hours of questioning by law enforcement, referencing the PBP's execution of the search warrants. The second addendum alleged Harris's two new state criminal charges as the basis for revocation. The third addendum requested that the district court issue an arrest warrant based on the second addendum's allegations. The district court approved the government's request to amend the original petition through these addenda and issued an arrest warrant.

         The district court held a revocation hearing on October 6, 2015. The court revoked Harris's original term of supervised release for his failure to report, as alleged in the first addendum, and imposed the first revocation sentence. This sentence consisted of one month of imprisonment (from October 6, 2015, to November 5, 2015) and 40 months of supervised release. Given the pending state court proceedings, the ...


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