           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT United States Court of Appeals
                                                   Fifth Circuit

                                                                            FILED
                                                                            June 5, 2008

                                       No. 07-40728                   Charles R. Fulbruge III
                                                                              Clerk


UNITED STATES OF AMERICA

                                                  Plaintiff-Appellee
v.


PATRICK WADE SCHNITKER

                                                  Defendant-Appellant



                   Appeal from the United States District Court
                        for the Eastern District of Texas
                             USDC No. 4:03-CR-159-1


Before JONES, Chief Judge, and WIENER, and CLEMENT, Circuit Judges.
PER CURIAM:*
       Patrick Wade Schnitker violated the terms of his supervised release. A
magistrate judge acting under 18 U.S.C. § 3401(i) conducted the hearing on the
revocation of Schnitker’s supervised release. The magistrate judge issued a
report and recommendation which advised revocation, and Schnitker filed timely
written objections. The district court adopted the magistrate judge’s report 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
                                       No. 07-40728

recommendation and sentenced Schnitker in absentia to twenty-four months of
imprisonment. Schnitker appeals. For the reasons stated below, we reverse and
remand for resentencing.
                         I. FACTS AND PROCEEDINGS
       Schnitker pleaded guilty to the fraudulent use of access devices in
violation of 18 U.S.C. §§ 371 and 1029(a)(2) on January 22, 2004. He was
sentenced to thirty-seven months of imprisonment and three years of supervised
release on June 30, 2004. Schnitker served his term of incarceration and began
serving his supervised release on May 6, 2006. In December 2006, Schnitker’s
probation officer moved to revoke Schnitker’s supervised release based on the
allegations that Schnitker: (1) committed the crime of criminal trespass, (2)
failed to report an arrest, (3) failed a drug test, (4) used a controlled substance,
and (5) failed to adequately participate in a drug treatment program.
       At his initial appearance before the magistrate judge on March 12, 2007,
Schnitker waived his right to a preliminary hearing under Rule 32.1(b)(1) of the
Federal Rules of Criminal Procedure and requested to proceed to the final
revocation hearing under Rule 32.1(b)(2). Pursuant to Schnitker’s request, the
magistrate judge set Schnitker’s matter for a final revocation hearing on April
4, 2007. The final revocation hearing also took place before the magistrate
judge. At the final revocation hearing, Schnitker pleaded true to allegations
three, four, and five. After evidence was presented, the magistrate judge found
that Schnitker had violated the terms of his supervised release.1
       The government recommended the maximum sentence of twenty-four
months of imprisonment, and Schnitker made an oral objection, asserting that
a sentence of twenty-four months of imprisonment would constitute cruel and



       1
         It should be noted that at the final revocation hearing the magistrate judge also
appropriately advised Schnitker of his “right to allocute his case to the United States District
Judge if he so desires.”

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unusual punishment for the original offense because the time of imprisonment
would exceed the statutory maximum. The magistrate judge denied Schnitker’s
objection and issued a report and recommendation to the district court on April
12, 2007, recommending revocation of Schnitker’s supervised release and a
sentence of twenty-four months of imprisonment.
      Schnitker filed objections to the magistrate judge’s report and
recommendation, asserting once again that his sentence for his original offense
would exceed the statutory maximum if Schnitker was required to serve another
twenty-four months of imprisonment.2 After performing a de novo review of the
record, the district court overruled Schnitker’s objection and adopted the
magistrate judge’s report and recommendation. The district court sentenced
Schnitker to twenty-four months of imprisonment on July 20, 2007, without
holding a hearing. Schnitker appealed.
                                    II. DISCUSSION
      Schnitker raises two issues. First, he argues that his final revocation
hearing was invalid because it was held before a magistrate judge without
Schnitker’s express consent. Second, Schnitker argues that the district court
violated Rule 32.1 of the Federal Rules of Criminal Procedure because it
sentenced him in absentia and without giving him the opportunity to allocute.
A.    18 U.S.C. § 3401(i)
      Schnitker challenges the magistrate judge’s authority to conduct his final
revocation hearing without his consent under 18 U.S.C. § 3401(i). Although
Schnitker did not object to the magistrate judge’s authority below, we consider
Schnitker’s claim because if he is correct the error is jurisdictional and cannot
be waived. See Withrow v. Roell, 288 F.3d 199, 201 (5th Cir. 2002) (holding that
lack of consent to trial by a magistrate judge under 28 U.S.C. § 636(c)(1) is a



      2
          Schnitker does not challenge the length of his sentence in this appeal.

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jurisdictional error that cannot be waived), rev’d on other grounds by Roell v.
Withrow, 538 U.S. 580, 591 & n.8 (2003).
      Section 3401(i) states:
             A district judge may designate a magistrate judge to conduct
      hearings to modify, revoke, or terminate supervised release,
      including evidentiary hearings, and to submit to the judge proposed
      findings of fact and recommendations for such modification,
      revocation, or termination by the judge, including, in the case of
      revocation, a recommended disposition under section 3583(e) of this
      title. The magistrate judge shall file his or her proposed findings
      and recommendations.
18 U.S.C. § 3401(i). This section clearly authorizes the magistrate judge to
conduct hearings on the revocation of supervised release. The authority to
conduct such hearings is consistent with and similar to the magistrate judge’s
power to conduct hearings and make recommendations to the district court
under 28 U.S.C. § 636(b)(1). Although the parties have not cited any case in
which this Circuit has explicitly addressed the validity of § 3401(i), this court
implicitly affirmed its validity in United States v. Rodriguez, 23 F.3d 919, 920
& n.1 (5th Cir. 1994). See also United States v. Waters, 158 F.3d 933, 936 (6th
Cir. 1998) (holding that § 3401(i) authorized magistrate judges to preside over
revocation hearings and noting that Rodriguez, 23 F.3d at 920 & n.1, assumed
that the magistrate judge had the authority to do so).
      The parties have not cited any cases from this Circuit addressing whether
the defendant’s consent is required before a magistrate judge may preside over
a revocation hearing under § 3401(i). This is an issue on which other courts of
appeals disagree. Compare United States v. Colacurcio, 84 F.3d 326, 332 (9th
Cir. 1996) (stating in dicta that the defendant’s consent was necessary under §
3401(i)), with Waters, 158 F.3d at 938–39 (holding that the defendant’s consent
was not necessary under § 3401(i)).
      In Colacurcio, the Ninth Circuit stated:


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      Because Congress placed subsections (h) and (i) in § 3401, we
      conclude that Congress intended subsection (b), which requires
      defendant’s consent, to apply to hearings conducted under
      subsections (h) and (i). There is simply no evidence in the
      legislative history that Congress meant to dispense with the consent
      requirement under subsection (b) when it added subsections (h) and
      (i) to the statute.
84 F.3d at 332. This statement was dicta because the defendant in Colacurcio
was challenging the revocation of his parole under § 3401(d), not revocation of
supervised release under § 3401(i). Id. at 329, 330–32.
      In Waters, which was a revocation of supervised release case like the one
before us, the Sixth Circuit concluded that there is no consent requirement in
§ 3401(i). 158 F.3d at 938–39. The Sixth Circuit acknowledged the Ninth
Circuit’s dicta in Colacurcio, but rejected it after distinguishing misdemeanor
trials by magistrate judges under § 3401(b) and revocation of supervised release
hearings by magistrate judges under § 3401(i).           Id.   The Sixth Circuit
“interpret[ed] the absence of an express consent requirement in subsection (i) as
a deliberate choice by Congress to exclude it in light of the lesser need for such
a safeguard in the context of the revocation of supervised release.” Id. at 939.
The Sixth Circuit further reasoned that the “de novo review by an Article III
judge is adequate to protect the rights of a convict accused of violating the terms
of his supervised release.” Id.
      We agree with the Sixth Circuit and hold that § 3401(i) does not require
the defendant’s consent before a magistrate judge can conduct a hearing on
modifying, revoking or terminating his supervised release. This conclusion is
consistent with the other subsections of § 3401. Section 3401(b) authorizes
magistrate judges to try and sentence those convicted of misdemeanors as long
as the defendant “expressly consents to be tried before the magistrate judge and
expressly and specifically waives trial, judgment, and sentencing by a district
judge.” Section 3401(d) empowers magistrate judges “to revoke, modify, or

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reinstate the probation of any person granted probation by a magistrate.”
Section 3401(d) specifically limits the probation-altering authority of magistrate
judges to those cases in which a magistrate judge had jurisdiction to grant
probation in the first instance. In those cases where a magistrate judge imposed
probation, however, § 3401(d) grants a magistrate judge final authority to alter
probation.
      Section 3401(i), in contrast, authorizes a magistrate judge to conduct
revocation hearings regarding supervised release even if the supervised release
was not granted by a magistrate judge. Unlike § 3401(d), subsection (i) does not
authorize magistrate judges to take the final step of actually revoking or
modifying supervised release; the district court retains final authority to modify
the defendant’s sentence. See Gonzalez v. United States, No. 06-11612, slip op.
at 9 (U.S. May 12, 2008) (noting that when the magistrate judge acts under
28 U.S.C. § 636(b)(3), “the district judge . . . is waiting in the wings, fully able to
correct errors”) (internal quotations omitted). We agree with the Sixth Circuit
that the district court’s de novo review is sufficient to preserve the defendant’s
rights, and that his express consent to a final revocation hearing before a
magistrate judge is not necessary. We hold that the magistrate judge had
authority to preside over Schnitker’s final revocation hearing under § 3401(i)
without his express consent.
B.    Sentencing in absentia
      Schnitker also argues that the district court violated Rule 32.1 of the
Federal Rules of Criminal Procedure when it sentenced him in absentia and
without giving him the opportunity to allocute. The government argues that
Schnitker waived his right to allocute before the district court by not requesting
to do so at his revocation hearing before the magistrate judge.
      Schnitker had the right to be present and to allocute at his sentencing. In
Rodriguez, this Court held that the requirements of Rule 43(a) and the former


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Rule 32(a)(1)(C)3 were not satisfied by the defendant’s presence and allocution
at a final revocation hearing before a magistrate judge under § 3401(i). 23 F.3d
at 920–21 & n.1. In Rodriguez, the defendant was sentenced to a term of
supervised release by a district court. Id. at 919. He violated the terms of his
supervised release and a final revocation hearing was held before a magistrate
judge. Id. at 919–20. The magistrate judge recommended that the supervised
release be revoked. Id. at 920. The defendant objected to the report and
requested a hearing before the district court to “‘provide additional information.’”
Id. at 920. The district court adopted the magistrate judge’s recommendations
and revoked the defendant’s supervised release without holding an additional
hearing. Id.
      This Court vacated the sentence and remanded for resentencing because
the district court imposed the sentence in absentia and without giving the
defendant an opportunity to allocute. Id. at 921. Although we noted that the
defendant requested a hearing, this Court did not rely on the defendant’s request
to find that error occurred. Id. at 920–21 & n.4. This Court stated that “[t]he
final determination of [the defendant’s] sentence was made by the district court,
and not the magistrate judge. [The defendant] was therefore entitled to be
present and to allocute when the district court imposed sentence.” Id. at 921.
      The government concedes that it was error for the district court not to
permit the defendant to allocute at his sentencing.                The government
nevertheless argues that under United States v. Reyna, this Court should review
the district court’s actions for plain error because Schnitker failed to object to his
lack of an opportunity to allocute. 358 F.3d 344, 353 (5th Cir. 2004). The
government argues that under the plain-error standard, we should affirm the
sentence because “the district court’s failure to provide [Schnitker with] the


      3
          This rule has been recodified as Rule 32(i)(4)(A)(ii).

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opportunity to allocute in the absence of any request to do so is not error
affecting the fairness, integrity or public reputation of judicial proceedings.”
       We decided Reyna under the plain-error standard because the defendant
was present at his sentencing and waived his right to allocute by failing to object
when the district court did not allow him to speak. Id. Schnitker had no
opportunity to object to the lack of allocution, because he was sentenced in
absentia. Likewise, because the record shows that the district court sentenced
him in a written order without setting a date for his appearance, Schnitker did
not have the opportunity to waive his right to be present at his sentencing.4
Under these circumstances, we review the district court’s actions for abuse of
discretion.    United States v. Bigelow, 462 F.3d 378, 381 (5th Cir. 2006)
(reviewing unobjected-to error for abuse of discretion instead of plain error
where the defendant had no opportunity to object below); United States v.
Warden, 291 F.3d 363, 364–65 & n.1 (5th Cir. 2002). Because the district court
erred when it sentenced Schnitker without giving him the opportunity to appear,
we must vacate Schnitker’s sentence and remand for a resentencing hearing at
which Schnitker may appear or voluntarily waive his presence.
                                    III. CONCLUSION
       We VACATE the sentence and REMAND to the district court.




       4
        Under Rule 43(c)(1)(B) of the Federal Rules of Criminal Procedure, “[a] defendant . . .
who had pleaded guilty . . . waives the right to be present . . . when the defendant is
voluntarily absent during sentencing.” Id.

                                              8
