                                                                 NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 _____________

                                      No. 12-2492
                                     _____________

                            UNITED STATES OF AMERICA

                                             v.

                                 MARIO T. WOODING,
                                             Appellant

                                       ___________

                     On Appeal from the United States District Court
                                for the District of Delaware
                              (D.C. No. 1-07-cr-00019-001)
                       District Judge: Honorable Leonard P. Stark
                                        ___________

                      Submitted Under Third Circuit L.A.R. 34.1(a)
                                 December 21, 2012

     Before:   McKEE, Chief Judge, SLOVITER, and VANASKIE, Circuit Judges.

                                 (Filed: March 15, 2013)
                                      ___________

                                        OPINION
                                       ___________

VANASKIE, Circuit Judge.

       Mario Wooding appeals his eighteen-month prison sentence resulting from his

admitted violation of conditions of supervised release, arguing that the District Court
erred by failing to advise him of the statutory five-year maximum term of imprisonment.

For the following reasons, we will affirm.

                                              I.

       Since we write principally for the parties, we set forth only the facts essential to

our analysis.

       Wooding‟s conviction by guilty plea to the charge of possession of a firearm in

furtherance of a drug trafficking crime, in violation of 18 U.S.C. § 924(c)(1), resulted in a

prison term of five years and a five-year term of supervised release. Shortly after

commencing his term of supervised release, Wooding engaged in new criminal conduct.

Wooding subsequently was convicted of various state drug crimes and for breach of

release and was sentenced to eight years of prison, suspended after two.

       Due to this new criminal conduct, as well as several other violations of the

conditions of supervised release, the Probation Office filed a petition, and then an

amended petition, for revocation of supervised release. On May 9, 2012, the date of the

amended petition, the Probation Office submitted a memorandum that calculated

Wooding‟s United States Sentencing Guidelines advisory range as eighteen to twenty-

four months‟ imprisonment,1 and noted the statutory maximum term of imprisonment of

five years under 18 U.S.C. § 3583(e)(3).




       1
         The Probation Office identified Wooding‟s state conviction for delivery of a
controlled substance as a Grade B Violation under U.S.S.G. § 7B1.1(a)(2). Based on
Wooding‟s criminal history category of V, the advisory range for a Grade B Violation
under U.S.S.G. § 7B1.4 is eighteen to twenty-four months‟ imprisonment.
                                              2
       On May 15, 2012, the District Court held a hearing on the amended petition.

Defense counsel informed the court that Wooding would be admitting to the violations,

and, as a result, the District Court conducted a colloquy to ascertain whether Wooding

was making a knowing and voluntary admission. During the colloquy, the District Court

advised Wooding that his admission could result in an additional term of incarceration in

addition to his state sentence, that the Guidelines recommended a term of imprisonment

of eighteen to twenty-four months, and that the Probation Office recommended twenty-

four months‟ imprisonment. The District Court, however, did not advise Wooding of the

five-year statutory maximum sentence.2 After hearing from defense counsel, Wooding,

and the Government, the District Court sentenced Wooding to eighteen months‟

imprisonment, consecutive to his state court sentence. Wooding appealed.

                                              II.

       The District Court had jurisdiction under 18 U.S.C. §§ 3231 and 3583(e)(3), and

we have appellate jurisdiction under 18 U.S.C. § 3742(a)(1) and 28 U.S.C. § 1291. As

Wooding recognizes, because he did not preserve the issue of whether the District Court

erred by not advising him of the possible five-year statutory maximum term of

imprisonment, we review for plain error under Rule 52(b) of the Federal Rules of

       2
         Previously, Wooding made an initial appearance on April 26, 2012, following
the original violation petition. At that proceeding, the Magistrate Judge advised Wooding
that: “For the type of charges that you face, presently face, particularly in light of the past
history, the court is aware for drug related offenses, my rough estimate, I haven‟t done a
complete analysis, could be up to three years in jail.” (S.A. at 5:43 to 6:00.) Although
the Magistrate Judge also failed to inform Wooding about the five-year statutory
maximum sentence, this fact does not alter our analysis because we focus on the
adequacy of the later revocation hearing conducted by the District Court.

                                              3
Criminal Procedure. See United States v. Miller, 594 F.3d 172, 183 n.6 (3d Cir. 2010)

(“We review the sentence imposed by the District Court for abuse of discretion except

where it was imposed without objection, in which case we review only for plain error.”

(internal quotation marks omitted)). To show plain error, an appellant must demonstrate

the existence of (1) an error, (2) that was plain, and (3) that affected his or her substantial

rights. United States v. Corso, 549 F.3d 921, 928 (3d Cir. 2008). However, “even if all

three conditions are met we will exercise our discretion to correct the unpreserved error

only if [the appellant] persuades us that (4) a miscarriage of justice would otherwise

result, that is, if the error seriously affect[ed] the fairness, integrity or public reputation of

judicial proceedings.” Id. at 929 (internal quotation marks omitted).

       Wooding argues that the District Court‟s failure to advise him of the statutory

maximum sentence deprived him of his due process rights under the Fifth Amendment.

“Revocation proceedings are subject to „minimum requirements of due process.‟” United

States v. Maloney, 513 F.3d 350, 356 (3d Cir. 2008) (quoting Gagnon v. Scarpelli, 411

U.S. 778, 786 (1973)).3 In the context of a guilty plea, we have noted that a “„voluntarily


       3
         In Gagnon, the Supreme Court listed the minimum due process requirements for
final revocation hearings, which include:

               “(a) written notice of the claimed violations of (probation or)
               parole; (b) disclosure to the (probationer or) parolee of
               evidence against him; (c) opportunity to be heard in person
               and to present witnesses and documentary evidence; (d) the
               right to confront and cross-examine adverse witnesses (unless
               the hearing officer specifically finds good cause for not
               allowing confrontation); (e) a „neutral and detached‟ hearing
               body such as a traditional parole board, members of which
               need not be judicial officers or lawyers; and (f) a written
                                                4
and understandingly made‟” plea “„includes knowledge and comprehension not only as to

the nature of the charge, but also as to the penalty which can be imposed.‟” United States

ex rel. Crosby v. Brierley, 404 F.2d 790, 794 n.6 (3d Cir. 1968) (quoting Kotz v. United

States, 353 F.2d 312, 314 (8th Cir. 1965)). However, a district court need not employ the

same formal colloquy required for a guilty plea under Rule 11 of the Federal Rules of

Criminal Procedure in a hearing for the revocation of supervised release. See Morrissey,

408 U.S. at 480 (“[T]he full panoply of rights due a defendant in [a criminal prosecution]

proceeding does not apply to parole revocations.”); see also United Statse v. Correa-

Torres, 326 F.3d 18, 23 (1st Cir. 2003) (“[N]ot withstanding the requirement that waivers

of procedural rights with respect to revocation hearings must be knowing and voluntary,

such waivers need not be accompanied either by any magic words or by a formal

colloquy of the depth and intensity required under Federal Rule of Criminal Procedure 11

. . . .”).

          Here, the District Court advised Wooding that his admission could result in

additional incarceration beyond his state prison sentence. The District Court also

informed him that the Guidelines recommended a range of eighteen to twenty-four



                statement by the factfinders as to the evidence relied on and
                reasons for revoking (probation or) parole.”

Gagnon, 411 U.S. at 786 (quoting Morrissey v. Brewer, 408 U.S. 471, 489 (1972)).
Those requirements were incorporated into Rule 32.1 of the Federal Rules of Criminal
Procedure, which governs hearings for the revocation of supervised release. Maloney,
513 F.3d at 356. Wooding does not argue that the District Court failed to comply with
Rule 32.1. Rule 32.1 does not require a court to advise a defendant at a revocation
hearing of the maximum possible sentence for a violation of a condition of supervised
release.
                                               5
months‟ imprisonment and that the Probation Office recommended the top end of that

range. Wooding affirmed, under oath, his understanding of that advice. We are

unconvinced that the District Court denied Wooding‟s right to due process by advising

him of the applicable sentencing range and sentencing him at the bottom of that range

even though statutory authority existed to impose a sentence of up to five years‟

imprisonment.

       Even assuming that the failure of the District Court to advise Wooding of the

maximum possible sentence was erroneous and that error was plain, Wooding has not

demonstrated that the error affected his substantial rights or that upholding his sentence

would work a miscarriage of justice by affecting the fairness, integrity, or public

reputation of the proceeding. Wooding has not shown a reasonable probability that he

would not have admitted to the violation of conditions of his supervised release if he had

known of the five-year statutory maximum sentence. Cf. United States v. Hall, 515 F.3d

186, 194 (3d Cir. 2008) (“„[A] defendant who seeks reversal of his conviction after a

guilty plea, on the ground that the district court committed plain error under Rule 11,

must show a reasonable probability that, but for the error, he would not have entered the

plea.‟” (quoting United States v. Dominguez Benitez, 542 U.S. 74, 83 (2004))).

Furthermore, Wooding was aware of the Guidelines range and received a sentence at the

bottom end of that range. We cannot conclude in this case that the failure to advise

Wooding of the statutory maximum resulted in a miscarriage of justice.

                                            III.

       For the foregoing reasons, we will affirm the judgment of the District Court.

                                             6
