JULIAN v. U.S

G. ANDERSON JR., District Judge

This matter is before the Court on Petitioner's Motion to Vacate, Set Aside, or Correct Sentence Under 28 U.S.C. § 2255. In accordance with Rule 4 of the Rules Governing § 2255 Proceedings, the Court has conducted a preliminary review of the motion. Because it is clear from the record that Petitioner is not entitled to relief on the bases asserted in his motion, the Court finds that summary dismissal is appropriate.

On July 28, 1992, Petitioner was indicted for three counts of bank robbery. He pled guilty and was sentenced to serve 130 months followed by 60 months of supervised release. On December 18, 2001, Petitioner finished his prison sentence and began serving his supervised release. On May 1, 2002, Petitioner was arrested in Savannah, Georgia. He later pled guilty to robbery by intimidation, driving under the influence, and fleeing to elude, and was sentenced to five years imprisonment in Georgia.

Based on the foregoing, Petitioner's probation officer reported the suspected violation of Petitioner's supervised release. The Court issued a warrant for Petitioner's arrest on January 30, 2003. A federal detainer was placed on Petitioner while he served his Georgia state sentence.

After Petitioner served his sentence in Georgia, authorities brought him to South Carolina pursuant to the federal detainer. The record shows that Petitioner arrived in South Carolina on May 11, 2006 but was not brought before a United States Magistrate until June 6, 2006. The Petitioner was then shown the petition for revocation of supervised release and an attorney was appointed to handle his case.

On July 6, 2006, this Court held a hearing on the petition to revoke Petitioner's supervised release. Petitioner stated that he had reviewed the violation report with his attorney and wished to plead guilty. The Court sentenced Petitioner to 33 months imprisonment — the low end of the guideline range for a defendant with a grade A violation and criminal history category of 6. Petitioner was given credit for the time he had spent in federal custody since May 9, 2006. Petitioner filed no direct appeals from the judgment. Petitioner timely filed his § 2255 petition on June 19, 2007.

Petitioner argues that 18 U.S.C. § 3583(e)(3), which authorizes the District Court Judge to make findings of fact and revoke a term of supervised release without a jury trial, is unconstitutional under the 5th Amendment, 6th Amendment, 14th Amendment, and United States v. Booker, 543 U.S. 220 (2005). In an unpublished opinion, the 4th Circuit rejected the argument Petitioner makes here. "[T]he Supreme Court did not totally invalidate the Sentencing Reform Act, but in fact left the great majority of the Act's provisions intact and legally effective. More specifically, the provision of the Act that governs supervised release, 18 U.S.C. § 3583, was not affected by Booker." United States v. Bonner, 127 Fed. Appx. 91, 92-93 (4th Cir. 2005) (unpublished opinion). Other Circuits that have considered the question have likewise held that 18 U.S.C. § 3583 was not invalidated by Booker. See United States v. Coleman, 404 F.3d 1103 (8th Cir. 2005); United States v. Cordova, 461 F.3d 1184 (10th Cir. 2006); United States v. Huerta-Pimental, 445 F.3d 1220 (9th Cir. 2006); United States v. Work, 409 F.3d 484 (1st Cir. 2005); United States v. Hinson, 429 F.3d 114 (5th Cir. 2005); United States v. Carlton, 442 F.3d 802 (2nd Cir. 2006).

Booker held that the Sentencing Guidelines are unconstitutional to the extent they are mandatory. 18 U.S.C. § 3583 leaves the decision in the discretion of the Court after considering the sentencing factors of 18 U.S.C. § 3553 and thus does not violate Booker. As to Petitioner's argument that he is entitled to a jury trial, "a sentence of supervised release by its terms involves a surrender of certain constitutional rights and this includes surrender of the due process rights articulated in Apprendi and its progeny. The full panoply of procedural safeguards does not attach to revocation proceedings because the Supreme Court has `distinguished revocation proceedings from criminal prosecutions on the ground that a probationer already stands convicted of a crime.'" Carlton at 809 (citations omitted).

Contrary to Petitioner's contention, he could have plead "not guilty" at the hearing. However, since he had plead guilty to the Georgia charges and admittedly left the state without permission, such a position would have no chance of success and might draw the ire of the Court.

Ground Two of the Petition raises identical issues as Ground One and so the Court need not give it separate consideration.

Petitioner argues that being held in federal custody for twenty-nine days without being served a warrant or appearing before the U.S. Magistrate violated his due process and equal protection rights. Federal Rule of Criminal Procedure 32.1(a)(1) provides that "[a] person held in custody for violating probation or supervised release must be taken without unnecessary delay before a magistrate judge." However, a delay of less than one month between being taken into federal custody and appearing before a magistrate judge does not violate Rule 32.1. See United States v. Chaklader, 987 F.2d 75, 77 (1st Cir. 1993). Furthermore, Petitioner has failed to show how this slight delay prejudiced his defense. The Court gave Petitioner credit for the time already spent in federal custody.

IT IS THEREFORE ORDERED that Petitioner's Motion to Proceed in Forma Pauperis is GRANTED.

IT IS FURTHER ORDERED that Petitioner's Motion to Vacate, Set Aside, or Correct Sentence Under 28 U.S.C. § 2255 be DISMISSED without service of process and without requiring Respondent to file an answer.

IT IS SO ORDERED.

Petitioner has the right to appeal this Order within sixty (60) days from the date of the entry of this Order, pursuant to Rules 3 and 4 of the Federal Rules of Appellate Procedure. Failure to meet this deadline, as modified by Rule 4 of the Federal Rules of Appellate Procedure, will waive the right to appeal.