                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 07-4730



UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

           v.


WILLIAM A. BRENNAN, III,

                Defendant - Appellant.



Appeal from the United States District Court for the Western
District of Virginia, at Roanoke.  Samuel G. Wilson, District
Judge. (7:02-cr-00059-sgw)


Argued:   May 16, 2008                     Decided:   July 22, 2008


Before WILLIAMS, Chief Judge, TRAXLER, Circuit Judge, and Terry L.
WOOTEN, United States District Judge for the District of South
Carolina, sitting by designation.


Affirmed by unpublished per curiam opinion.


ARGUED: Paul Graham Beers, GLENN, FELDMANN, DARBY & GOODLATTE,
Roanoke, Virginia, for Appellant. C. Patrick Hogeboom, III, OFFICE
OF THE UNITED STATES ATTORNEY, Roanoke, Virginia, for Appellee. ON
BRIEF: John L. Brownlee, United States Attorney, Roanoke, Virginia,
for Appellee.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

     William A. Brennan, III, raises a number of challenges to the

district court’s order revoking his term of supervised release and

imposing a 24-month prison sentence under 18 U.S.C.A. § 3583(e)

(West 2000 & Supp. 2008).    We affirm.



                                 I.

     On April 14, 2003, Brennan was sentenced to concurrent prison

terms of twenty months for conspiracy to defraud the United States

government, see 18 U.S.C.A. § 371 (West 2000), and interstate

transportation of stolen goods, see 18 U.S.C.A. § 2314 (West 2000).

The sentencing court also imposed a three-year term of supervised

release to follow Brennan’s period of incarceration.     The order of

judgment included the mandatory condition of supervised release

that “the defendant not commit another Federal, State, or local

crime during the term of supervision.” 18 U.S.C.A. § 3583(d) (West

Supp. 2008).   Brennan was released from prison on June 6, 2004.

     On June 7, 2005, one year after his release from prison,

Brennan was arrested in West Virginia for the June 6 murder of his

wife, Lisa Brennan.   Brennan’s probation officer immediately filed

a Supervised Release Violation Report recommending that Brennan’s

term of supervised release be revoked on the grounds that Brennan

violated the mandatory condition of release that he not commit

another   crime.   The   revocation   petition   classified   Brennan’s


                                  2
violation as a Grade A violation, see U.S.S.G. § 7B1.1(a)(1), and,

in light of his category I criminal history, calculated a guideline

range of 12 to 18 months, see U.S.S.G. § 7B1.4(a).

     Accompanying the Violation Report was the probation officer’s

petition for an arrest warrant for Brennan for violating the

conditions of supervised release.            The warrant petition alleged

that, “[o]n June 7, 2005, William Brennan was arrested for the

murder of Lisa Brennan in Logan County, West Virginia.”                J.A. 29.

No other factual allegations about the arrest or the underlying

facts were included in the petition.                On June 14, 2005, the

district court issued the warrant and directed that it be filed

with West Virginia officials as a detainer pending resolution of

the state murder charges.           The warrant was executed in October

2006, while Brennan was in jail awaiting trial on the murder

charge.

     In April 2007, Brennan went to trial on a reduced charge of

voluntary manslaughter in the death of Lisa Brennan.              The jurors

were unable to reach a verdict, and the state judge was forced to

declare a mistrial.         Immediately after Brennan’s trial, he was

transferred to federal custody and brought before the district

court   on   the   charge    that   he   violated   the   conditions    of   his

supervised release.         Brennan refused his court-appointed counsel

and insisted on proceeding pro se, but the district court directed

that counsel remain in a stand-by capacity.


                                         3
     Brennan’s revocation hearing was held on July 11, 2007, after

the expiration of his three-year term of supervised release in June

2007. The evidence presented at the revocation hearing showed that

Brennan ran numerous errands on the morning of June 6 and returned

home at 2:00 p.m.     In a written statement for investigators,

Brennan claimed that when he noticed Lisa was gone, he looked for

her purse but was unable to find it.   The evidence showed, however,

that Brennan made at least two phone calls that day to friends and

relatives during which Brennan indicated that Lisa was missing and

that her purse was still in their home.

     Later that afternoon, Brennan picked up his teenage son from

a gym and revealed that Lisa had been missing for a few hours.

When they returned home, Brennan asked his son to clean the house.

The boy did so, including removing and laundering the sheets from

his mother’s bed -– something that he typically did not do when

cleaning the house.    Following dinner, Brennan decided to look

outside their trailer for a note and to search various vehicles

that were parked on Brennan’s property.      After checking several

cars, Brennan reached a Toyota Camry and decided to look inside of

the trunk.   Before doing so, however, he examined the trunk for

fingerprints.   He then opened the trunk of the Camry and saw the

body of his wife, as well as her purse and some shoes.




                                 4
     Brennan called 911 at 10:00 p.m. on June 6, 2005, and reported

that he had discovered his wife’s body.                Brennan declined the

dispatcher’s offer to help him perform CPR because he was certain

Lisa Brennan was dead:      “Buddy, I don’t want to move her.          She is

clearly dead.        I tried to pour water down her mouth and she is

stiff as a board.       She has been in there since 2:00.”        J.A. 180.

Brennan then immediately added, “I have been looking for her since

2:00.”   J.A. 180.      There was also evidence that, when responding

officers arrived at the scene, Brennan was extremely calm and

unemotional.

     The Logan County medical examiner set the time of death

between 1:00 p.m. and 3:00 p.m, a period of time during which Mike

Caldwell,      one     of   Brennan’s       business     associates,    tried

unsuccessfully to call Brennan several times. The medical examiner

initially determined that Lisa died as a result of blunt force

trauma, but ultimately concluded that Lisa’s death occurred as a

result of being shaken violently.

     The government also presented evidence of an incident that

occurred one month prior to Lisa Brennan’s murder, in which Lisa

urinated on herself in their van, prompting Brennan, in front of a

witness, to “jerk[] Lisa out of the van by the arm, and spray[] her

with a steam genie front and back.”          J.A. 191.

     At the revocation hearing, Brennan highlighted the lack of DNA

or fingerprint evidence linking him to Lisa’s death.            Also, there


                                        5
was no evidence presented of scratches or bruises sustained by

Brennan, but investigators noticed several scratches on Brennan’s

son.

       The district court concluded that the evidence showed Brennan

was at least an accessory to his wife’s murder, which is a

violation of his supervised release:

             Lisa Brennan was the victim of an unlawful
       felonious homicide. The evidence presented . . . is not
       sufficient for the Court to determine whether that
       unlawful felonious homicide was first degree murder,
       second degree murder or involuntarily manslaughter.
       Nevertheless, she was the victim of an unlawful
       felonious homicide. The likely cause of death was blunt
       force    head  trauma  caused   by   acceleration   and
       deceleration. Essentially, she was shaken to death.

            William Brennan was a principal or accessory to the
       unlawful felonious homicide.        In reaching that
       conclusion, I look to the following facts which I find
       more likely true than not.

            First, Brennan previously had been abusive and
       cruel to Lisa as exemplified by the incident where . .
       . [Brennan] sprayed [Lisa] with a Steam Genie. . . .

            Second, Brennan showed little emotion in content or
       intonation when dealing with law enforcement officers
       under circumstances that some emotion would be expected
       from a person who had just suffered a grievous loss.
       Indeed, even the dialogue in the 9-1-1 call lacks any
       hint of the kind of emotion I would expect. . . .

            Third, nothing remotely suggested that his wife
       might be in the trunk of the car. Yet he looked there.
       Obviously, this is a highly unusual place to look in the
       absence of some indicia that he should be looking for
       his wife in the trunk.

            I have no hesitancy in concluding that he knew she
       was there and was not looking for her. The search was
       a charade or ruse.    Mr. Brennan, either assisted or
       unassisted, put her in that trunk.

                                  6
J.A. 179-81.

        The district court concluded, based on the evidence, that

Brennan had committed a crime in violation of his conditions of

supervised release. The court found, however, that the recommended

sentencing range of 12-18 months was inadequate for the seriousness

of Brennan’s offense.          The court imposed the statutory maximum of

two     consecutive       twenty-four      month    terms.     See    18     U.S.C.A.

§ 3583(e).      Brennan filed this appeal.1



                                           II.

                                           A.

      Brennan       first    argues       that     the   district    court     lacked

jurisdiction over the revocation proceedings and erroneously denied

his motion to dismiss.             Because Brennan’s revocation hearing took

place       after   his     term     of   supervised      release    expired,    the

jurisdiction of the district court was governed by § 3583(i):

      The power of the court to revoke a term of supervised
      release for violation of a condition of supervised
      release, and to order the defendant to serve a term of
      imprisonment . . . extends beyond the expiration of the
      term of supervised release for any period reasonably
      necessary for the adjudication of matters arising before
      its expiration if, before its expiration, a warrant or



        1
      While the appeal was pending before this court, Brennan was
retried in West Virginia state court. On February 25, 2008, he was
convicted by a jury of voluntary manslaughter in the death of Lisa
Brennan.   We note this fact for the sake of completeness; this
subsequent conviction, however, has no bearing on the disposition
of this appeal.

                                            7
       summons has been issued on the basis of an allegation of
       such a violation.

18 U.S.C.A. § 3583(i) (West 2000).

       The warrant in this case was issued in June 2005 and executed

in    October   2006,    clearly   before      the    expiration     of    Brennan’s

supervised release.       Brennan argues, however, that a “warrant” did

not    technically      issue   because       the    warrant   did   not    contain

sufficient factual allegations to establish probable cause; it

merely stated that Brennan had been “arrested for the murder of

Lisa Brennan in Logan County, West Virginia.”                   J.A.      33.   This

claim is without merit.

       Section 3583(i) grants federal courts reach-back jurisdiction

if, prior to the expiration of the term of supervised release, “a

warrant or summons has been issued on the basis of an allegation of

such violation.”     The text of the statute does not require that the

warrant be founded upon probable cause or sworn allegations in

order for the district court to exercise jurisdiction. See United

States v. Garcia-Avalino, 444 F.3d 444, 445-46 (5th Cir. 2006); cf.

United States v. Presley, 487 F.3d 1346, 1349 (11th Cir. 2007) (“If

Congress had wanted, it easily could have said that for purposes of

supplying reach back jurisdiction under § 3583(i) a summons must be

supported by sworn facts.          It didn’t say that.”).            Nevertheless,

there is a disagreement among the circuits regarding whether a

warrant issued under § 3583(i) must strictly comply with the Fourth

Amendment in order to vest the court with jurisdiction.                     Compare

                                          8
Garcia-Avalino, 444 F.3d at 445 (concluding that § 3583 contains no

“implicit sworn-facts requirement embedded in the very meaning of

the   word      ‘warrant’     as     a   legal    term”    and   that     the   court’s

jurisdiction under § 3583(i) did not hinge on whether the warrant

complied with the Fourth Amendment sworn-facts requirement) with

United States v. Vargas-Amaya, 389 F.3d 901, 904 (9th Cir. 2004)

(concluding that, as used in § 3583(i), “warrant” is a “document

that is based on probable cause and supported by sworn facts”).

      We need not take a position on this question.                        We conclude

that, under either view of the statute, the warrant issued by the

district court was sufficient to afford the court jurisdiction

under    §    3583(i)   to    adjudicate        the   revocation       petition.     The

petition for the warrant identified the specific condition that

Brennan allegedly violated -- the no-other-crimes condition -- and

provided the date and location of Brennan’s arrest, as well as the

charge       upon   which    he    was   arrested.        This   was    sufficient    to

establish probable cause to believe Brennan violated his conditions

of supervised release.              In our view, it was unnecessary for the

warrant to include additional facts or more detail about the

alleged murder because Brennan was not being arrested for murder

under the warrant but for violating his conditions of supervised

release.       The fact that state authorities formally charged and

arrested Brennan for murder is enough to supply probable cause that

a violation occurred.             We conclude that the petition and resulting


                                            9
order issuing the warrant satisfied the requirements of § 3583(i),

preserving the district court’s jurisdiction to address Brennan’s

alleged violation that occurred during his supervised release

period.

                                       B.

      Next, Brennan contends that the district court abused its

discretion in refusing to grant a continuance of the revocation

hearing.      Immediately     before   the     revocation     hearing,   Brennan

requested that the district court continue the hearing until the

completion of his manslaughter retrial.                 Brennan argued that he

could not take the stand at the revocation hearing without risking

that his testimony would be used against him if he took the stand

in the retrial of his manslaughter charges.                Although Brennan did

not testify in his own behalf at the first manslaughter trial, he

claims     that   the    district    court’s      denial    of   a   continuance

effectively eliminated his choice and precluded him from taking the

stand in the retrial, in violation of his Fifth Amendment rights.

We disagree.

      Brennan was not forced to remain silent and was free to

testify at his retrial.        Although Brennan faced certain risks in

testifying at the revocation hearing, “[t]he Fifth Amendment does

not   immunize    a     defendant   from    all   the    potentially     negative

consequences of making such a choice.” United States v. Jones, 299

F.3d 103, 111 (2nd Cir. 2002).               Even if the district court’s


                                       10
refusal to grant a continuance required Brennan “to choose between

asserting his right to silence and pursuing what he believed to be

the most effective defense against revocation does not mean that

[he] faced the kind and intensity of coercion that could deprive

him of the right against compelled self-incrimination.”             Id.; see

also id. at 109 (rejecting a “bright line rule that federal courts

should delay revocation proceedings until after the disposition of

state charges that form the basis of revocation requests”); cf.

Lynott v. Story, 929 F.2d 228, 230 (6th Cir. 1991) (“It is well

settled that a court is not constitutionally bound to postpone a

probation revocation hearing pending conclusion of a federal or

state   criminal    proceeding    upon      which    parole   revocation   is

sought.”).

     Furthermore,    Brennan     has   failed   to   demonstrate   that    the

district court’s decision amounted to an abuse of discretion, and

he has failed to specifically articulate how the court’s ruling

resulted in prejudice to him.          See United States v. Bakker, 925

F.2d 728, 735 (4th Cir. 1991) (“To prove that the denial of the

continuance constitutes reversible error, [the defendant] must

demonstrate that the court abused its broad discretion and that he

was prejudiced thereby.” (internal quotation marks omitted)).

     We find no error in the district court’s refusal to grant a

continuance.




                                       11
                                     C.

     Brennan next raises a series of arguments stemming from the

fact that the district court’s order did not specify whether

Brennan acted as a principal or an accessory in his wife’s murder.

Brennan argues that he was deprived of his due process right to

notice of the charges against him because the district court

revoked his supervised release based on the finding that Brennan

was “at least” an accessory to Lisa’s murder, but the petition for

revocation    specified    only   murder    as   the    basis   for   Brennan’s

violation.

     Although revocation proceedings are not criminal trials to

which the “full panoply” of constitutional rights attach, see

Morrissey v. Brewer, 408 U.S. 471, 480 (1972), such proceedings are

subject to certain minimum due process requirements, including

“notice of the alleged violations.”          See Gagnon v. Scarpelli, 411

U.S. 778, 786 (1973); see also Fed. R. Crim. P. 32.1(b)(2).                Due

process violations during a supervised release revocation hearing

are subject to harmless error review. See United States v. Havier,

155 F.3d 1090, 1092 (9th Cir. 1998).

     We reject Brennan’s argument that the petition for revocation

failed   to   give   him   sufficient     notice   to   prepare   a   defense,

concluding that any deficiency was harmless.               Brennan does not

suggest that his defense strategy would have been affected had he

been expressly charged with being an accessory to his wife’s


                                     12
murder, conceding that accessory to murder before the fact is a

lesser included offense arising from the same nucleus of operative

fact.2

     We likewise reject Brennan’s argument that he was deprived of

due process because the district court failed to articulate its

specific basis for revoking his supervised release.   Specifically,

Brennan complains that the district court failed to explain what

his role was in the killing of Lisa Brennan.   Due process requires

that the court’s findings be “sufficiently complete to advise the

parties and the reviewing court of the reasons for the revocation

of supervised release and the evidence the decision maker relied

upon.”   United States v. Copeland, 20 F.3d 412, 414 (11th Cir.

1994) (per curiam).   Brennan contends that the district court’s

findings fail this standard because it is unclear whether the

district court concluded that Brennan was an accessory after the

fact or an accessory before the fact. This distinction is crucial,

according to Brennan, because Brennan could not be convicted under

West Virginia law of being an accessory after the fact to a murder

carried out by his son.   See W. Va. Code Ann. § 61-11-6; State v.

McCallister, 357 S.E.2d 759, 761-62 (W. Va. 1987).



     2
      To the extent Brennan argues that § 3583(i) permits “post-
term revocation only when the warrant or summons is issued . . . on
the specific basis of the alleged violation upon which revocation
is ultimately based,” we disagree based on the plain language of
the statute. United States v. Naranjo, 259 F.3d 379, 382 (5th Cir.
2001) (italics omitted); see Presley, 487 F.3d at 1349-50.

                                13
     The district court’s findings were sufficiently clear to pass

muster under the requirements of due process.             It is evident from

the record that the district court concluded that Brennan committed

a crime in violation of the terms of his supervised release, acting

either as the principal in his wife’s killing or as an accessory.

Nothing in the record remotely suggests that the district court

found   Brennan     to   be   an   accessory   after-the-fact    to   a   murder

committed by his son.         Accordingly, we conclude that the district

court provided an adequate explanation for its revocation decision.

     Finally, Brennan contends that the district court’s order of

revocation cannot stand because it is not supported by sufficient

evidence.     A district court need only find a violation of a

condition of supervised release by a preponderance of the evidence.

See 18 U.S.C.A. § 3583(e)(3).             This court reviews the district

court’s decision to revoke supervised release for an abuse of

discretion, see United States v. Davis, 53 F.3d 638, 642-43 (4th

Cir. 1995).    We will not disturb the court’s underlying factual

determinations absent clear error. See United States v. Carothers,

337 F.3d 1017, 1019 (8th Cir. 2003).

     Brennan bases his sufficiency of the evidence argument on the

district court’s conclusion that the evidence presented was not

sufficient    for   the   court     to   determine   whether   Brennan    was   a

principal or an accessory in the murder of his wife.                  We reject

this argument.      The evidence is sufficient to support the court’s


                                         14
conclusion that, based on a preponderance of the evidence, Brennan

participated in his wife’s killing as no less than an accessory.

                                           D.

       Finally, we affirm the consecutive 24-month sentences imposed

by the district court following revocation of Brennan’s supervised

release.      We will not disturb a sentence imposed after revocation

of supervised release unless it is “‘plainly unreasonable’ with

regard to those § 3553(a) factors applicable to supervised release

revocation sentences.”           United States v. Crudup, 461 F.3d 433, 437

(4th   Cir.     2006).      We    must     determine       initially      whether       the

revocation      sentence    is    unreasonable,       a    process       that    includes

procedural      and   substantive        components.        See    id.    at     438.     A

revocation sentence is procedurally reasonable if the district

court took into account the Chapter 7 policy statements and the

applicable factors in § 3553(a).                See id. at 440.      The sentence is

substantively reasonable if the court stated an appropriate basis

for imposing a sentence within the statutory maximum.                             See id.

Only if we determine that the sentence was unreasonable do we

proceed    to   the   question      of    whether    the    sentence       was    plainly

unreasonable.         See   id.    at    439    (explaining       that    the    “plainly

unreasonable” prong incorporates “the definition of ‘plain’ that we

use in our ‘plain’ error analysis”).

       Brennan argues that his sentence is unreasonable because the

district court considered an impermissible factor.                       In imposing a


                                           15
24-month sentence instead of a sentence within the advisory 12-18

month    range,   the   court    explained   that   “it   would   trivialize

supervised release under the circumstances here . . . when the

crime involves the defendant’s participation in the . . . unlawful

felonious death and killing of his wife.”             J.A. 182.     Brennan

suggests that this statement reflects that the court improperly

considered the seriousness of the offense. See Crudup, 461 F.3d at

439.     The court’s observation, however, is relevant to other

required considerations, including “the nature and circumstances of

the offense and the history and characteristics of the defendant.”

18 U.S.C.A. § 3553(a)(1) (West 2000) (emphasis added).            Moreover,

the district court expressly considered the Chapter 7 policy

statements and the factors in § 3553(a) that are applicable to

revocation sentences.           We conclude, therefore, that Brennan’s

sentence is not unreasonable, much less plainly so.



                                     III.

       For the foregoing reasons, we affirm the order of the district

court.

                                                                   AFFIRMED




                                      16
