                                                                 NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 _____________

                                      No. 15-1762
                                     _____________

                            UNITED STATES OF AMERICA

                                             v.

                                   MARCUS POUGH,

                                         Appellant
                             __________________________

                      Appeal from the United States District Court
                         for the Eastern District of Pennsylvania
                                 (No. 2:06-cr-00686-001)
                     District Judge: Honorable Michael M. Baylson

                    Submitted Pursuant to Third Circuit LAR 34.1(a)
                                   January 20, 2016

              Before: FISHER, CHAGARES and COWEN, Circuit Judges.

                                 (Filed: January 22, 2016)
                                      ____________

                                        OPINION*
                                      ____________

CHAGARES, Circuit Judge.

       Defendant Marcus Pough appeals the District Court’s judgment revoking his term

of supervised release and resulting sentence of sixty months of imprisonment. Pough

*
 This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
raises two primary issues: (1) whether the District Court erred when it construed his state

court testimony as an admission of a violation of his supervised release term; and (2)

whether his revocation sentence is procedurally unreasonable. For the reasons that

follow, we will vacate the judgment and remand to the District Court.

                                             I.

       We write solely for the parties and therefore recite only the facts necessary to our

disposition. In 2008, after pleading guilty to a two-count indictment,1 Pough was

sentenced to a term of 60 months of imprisonment to be followed by five years of

supervised release. Pough began his supervised release on July 1, 2011. His term of

supervised release included a standard condition that Pough “shall not commit another

Federal, state or local crime and shall not illegally possess a controlled substance.” See

Appendix (“App.”) 27.

       On June 27, 2012, Pough was arrested in Philadelphia and charged with

conspiracy, murder, and related offenses in the Philadelphia Court of Common Pleas.

The state charges were based on allegations that Pough was the getaway driver in a

murder-for-hire plot. The next day, on June 28, 2012, the United States Probation Office

filed a petition charging Pough with violating his federal supervised release for his




1
 Pough pleaded guilty to one count of possession with intent to distribute 5 grams or
more of cocaine base, in violation of 21 U.S.C. § 841(a)(1), and one count of possession
of a firearm in furtherance of a drug trafficking crime, in violation of 18 U.S.C. § 924(c).

                                             2
alleged role in the murder-for-hire.2 The petition was held pending resolution of the state

court case.

       In the state case, the prosecution’s primary evidence against Pough was his

written, uncounseled confession made on June 27, 2012, at the police station. His signed

statement admitted that he was offered $10,000 to act as the getaway driver for two

assailants who shot and killed a man. Pough moved to suppress his statement on Fifth

and Fourteenth Amendment grounds, and the state court held multiple suppression

hearings on this issue. Pough testified that he was not actually involved in the murder

conspiracy, did not know who shot and killed the victim, and did not drive the getaway

vehicle. Instead, Pough claimed that he provided the written statement because the police

had promised him immunity and witness protection.

       At the conclusion of the suppression hearings, the state court made a factual

finding that Pough, without having been Mirandized and without the assistance of

counsel, was initially questioned on the street from 2:50 p.m. until 3:30 p.m., then

searched and transported to the police station, and then questioned “in a custodial

environment” at the police station from approximately 4:15 p.m. to 11:00 p.m. See App.

149-50, 155, 157. Yet, it was not until after 6:54 p.m. that detectives first gave Pough his

Miranda warnings. Shortly after he was Mirandized, Pough provided the written

statement. See id. at 155. The state court indicated that it was “incredible that no


2
 Pough had one prior violation of his supervised release term, which resulted in a
sentence of 60 days of home confinement with electronic monitoring. All other
conditions of his supervised release term remained in effect.

                                             3
Detective had any notes with regard to this roughly three hour period of interaction [prior

to the Miranda warnings] and that no paperwork was generated.” Id. at 150. The state

court concluded that Pough’s written statement was involuntary and “induced by

improper promises of leniency that were designed to induce Pough into waiving his

constitutional rights and to confess to his involvement in the murders at issue,” in

violation of the Fifth and Fourteenth Amendments of the United States Constitution.

App. 161. Accordingly, the state court suppressed the statement. With the confession

excluded, the prosecution withdrew the charges against Pough.

       After the state charges were withdrawn, the District Court held two revocation

hearings on the violation petition before concluding that Pough had committed the

violation. In so finding, the District Court explicitly “rel[ied] solely on Defendant’s

testimony during the suppression hearing to find a violation.”3 App. 13 (emphasis

added). Specifically, the District Court considered Pough’s testimony during his cross

examination at the December 13, 2013, suppression hearing:

              Q: You’ve had a chance to look at your statement again since
              the last hearing, right? Take a look at your confession again?

              A: Yes.

              Q: And when you mentioned that thing about how you were
              talking about getting your van back, you said specifically I’ll
              never get that car back, will I; is that right?


3
 The District Court indicated that it was not considering Pough’s written confession in its
analysis. Thus, the District Court did not rule on whether his confession, which the state
court deemed an involuntary confession in violation of the Fifth and Fourteenth
Amendments, was admissible in a federal revocation proceeding. See App. 13.

                                             4
               A: Yes.

               Q: And you knew that you were confessing and implicating
               the shooters on the homicide, right?

               A: Yes.

               Q: That you were only the getaway driver. You never even
               held the gun, right?

               A: Never what?

               Q: You’re the getaway driver only, right? Meaning you
               didn’t shoot the gun that day that killed Damon Stafford,
               right?

               A: Yes.

               Q: You identified Hak and New-Man as the shooters, not
               you, correct?

               A: Yes.

               ****

               Q: Just so that we’re clear, you’re telling Her Honor that you
               legitimately thought, despite being the driver in a murder for
               hire, that you were not going to be prosecuted for that?

               A. Yes.

App. 138-39.

       Based on that testimony, as well as the failure of Pough’s attorney to conduct

redirect and the failure of Pough to deny “the veracity of his statement,” see App. 90-93,

the District Court found that Pough had made an incriminating statement, which “clearly

established that he was involved as a get-away driver after a murder took place and that

this conduct was in violation of the terms of his supervised release.” App. 16.


                                             5
Accordingly, the District Court revoked his supervised release. Although a “dispositional

report” by the United States Probation Office identified the advisory sentencing range as

30-37 months of imprisonment under the United States Sentencing Guidelines (the

“Guidelines”), the District Court sentenced Pough to 60 months of imprisonment. Pough

timely appealed.

                                              II.

       The District Court had jurisdiction pursuant to 18 U.S.C. §§ 3231 and 3583(a),

and we have jurisdiction pursuant to 28 U.S.C. § 1291 to review a final decision of a

district court. A district court may “revoke a term of supervised release, and require the

defendant to serve in prison all or part of the term of supervised release authorized by

statute . . . if the court . . . finds by a preponderance of the evidence that the defendant

violated a condition of supervised release. . . .” 18 U.S.C. § 3583(e)(3). We review a

district court decision to revoke supervised release for abuse of discretion. United States

v. Maloney, 513 F.3d 350, 354 (3d Cir. 2008). Factual findings supporting that decision

are reviewed for clear error; legal issues are subject to de novo review. Id.

                                              III.

       Although the parties agree that the District Court could consider Pough’s state

court testimony for purposes of his revocation proceeding,4 the parties disagree over


4
  “[A] defendant charged with violating a release condition, unlike a defendant charged
with violating a statute, does not enjoy the full panoply of rights normally available in a
criminal proceeding.” United States v. Loy, 237 F.3d 251, 260 (3d Cir. 2001) (quotation
marks omitted). For example, to safeguard a defendant’s right against self-incrimination,
a defendant’s testimony in support of a motion to suppress evidence may not be used
against him at a subsequent trial, see Simmons v. United States, 390 U.S. 377, 393-94
                                               6
whether the testimony is a judicial admission to be reviewed de novo or a factual finding

to be reviewed for clear error. We do not need to resolve this question because we hold

that, even under the more deferential clear error standard of review, the District Court

erred.

         A factual finding is “‘clearly erroneous’ when although there is evidence to

support it, the reviewing court on the entire evidence is left with the definite and firm

conviction that a mistake has been committed.” Anderson v. City of Bessemer City, 470

U.S. 564, 573 (1985). “If the district court’s account of the evidence is plausible in light

of the record viewed in its entirety, the court of appeals may not reverse it even though

convinced that had it been sitting as the trier of fact, it would have weighed the evidence

differently.” Id. at 574. See also United States v. Stewart, 452 F.3d 266, 273 (3d Cir.

2006) (same).

         Based on our review of the limited record that the District Court relied upon, we

conclude the District Court committed clear error. The District Court relied “solely” on

Pough’s testimony during the December 13, 2013, suppression testimony. App. 13. This

testimony, however, does not provide the minimum evidentiary support necessary for

finding a violation by a preponderance of the evidence. The line of questioning initiated

by the prosecutor clearly relates to Pough’s written statement. The prosecutor’s

questions focused on what Pough told police and what Pough understood to be the

implications of his confession. See, e.g., App. 138 (“And when you mentioned that thing


(1968), but a defendant has no such right against self-incrimination in a revocation
proceeding, see Loy, 237 F.3d at 260.
                                              7
about how you were talking about getting your van back, you said specifically I’ll never

get that car back, will I; is that right?”) (emphases added). After these types of questions,

the prosecutor asked, “Just so that we’re clear, you’re telling Her Honor that you

legitimately thought, despite being the driver in a murder for hire, that you were not

going to be prosecuted for that?” App. 139. But this question, and similar questions

asked by the prosecution, do not provide the minimum evidentiary support necessary for

the supervised release violation, when considered in the context of Pough’s overall

testimony. The clear import of Pough’s testimony at the December 13, 2013, hearing is

that Pough provided the written statement to police because he believed that, if he were to

confess, he would not be prosecuted. Nor does the failure of Pough’s attorney to conduct

redirect, or Pough’s failure to affirmatively deny “the veracity of his statement” change

this analysis. Indeed, at an earlier hearing held on October 28, 2013, Pough testified that

he did not drive the getaway car, did not know who the shooters were, but had confessed

in his written statement because prosecutors offered him immunity. See App. 120.

       Thus, we are “left with the definite and firm conviction that a mistake [was]

committed” by the District Court when it construed Pough’s testimony at the suppression

hearing as an incriminating statement. See Anderson, 470 U.S. at 573. Therefore, the

District Court’s decision revoking supervised release, based solely on Pough’s isolated

testimony at the state suppression hearing, was inconsistent with the exercise of sound

discretion.




                                              8
       We will vacate the District Court’s judgment and remand for further development

of the record. We note that at Pough’s revocation hearing, the District Court declined,

despite requests by both parties, to develop an independent record of the violation. On

remand, the District Court may wish to hear relevant testimony, and it may wish to

decide, in the first instance, the admissibility of Pough’s written statement in a federal

revocation hearing.

       Accordingly, we need not reach Pough’s second argument on appeal — that his

sentence was procedurally unreasonable.5

                                             IV.

       For the foregoing reasons, we will vacate the District Court’s judgment and

remand for further proceedings consistent with this opinion.




5
  Pough argues that the District Court committed plain error when it did not calculate the
advisory Guidelines sentencing range, and failed to provide reasons, pursuant to 18
U.S.C. § 3553(a), for its upward variance. In imposing its sentence, the District Court
stated, “[a]nd that given the seriousness of the violation that the sentence is 60 months in
custody of the Bureau of Prisons, so I’m going to make that the — impose that sentence.”
App. 100-01. We need not address this second issue on appeal, as we hold that the
District Court committed clear error when it relied solely on Pough’s suppression
testimony to conclude that Pough violated his supervised release term. But we note that a
sentencing court, during a revocation hearing, must consider certain factors enumerated
in 18 U.S.C. § 3553(a), pursuant to 18 U.S.C. § 3583(c). See United States v. Clark, 726
F.3d 496, 500-01 (3d Cir. 2013).

                                              9
