                                                                              F I L E D
                                                                       United States Court of Appeals
                                                                               Tenth Circuit
                        UNITED STATES COURT OF APPEALS
                                                                               DEC 20 2004
                                   TENTH CIRCUIT
                                                                           PATRICK FISHER
                                                                                    Clerk

 UNITED STATES OF AMERICA,

          Plaintiff-Appellee,
 v.                                                          No. 04-5053
 TONYA STEVENS,                                        (D.C. No. 94-CR-162-H)
                                                          (N.D. Oklahoma)
          Defendant-Appellant.




                                ORDER AND JUDGMENT*


Before BRISCOE, HOLLOWAY, and HARTZ, Circuit Judges.


      Defendant Tanya Stevens appeals the district court’s decision to impose multiple

and consecutive terms of imprisonment for her admitted violations of supervised release.

We exercise jurisdiction pursuant to 28 U.S.C. § 1291 and affirm.

                                            I.

      In March 1995, Stevens pled guilty to distribution of a controlled substance and

aiding and abetting, in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2(a); unlawful



      *
        This order and judgment is not binding precedent, except under the doctrines of
law of the case, res judicata, and collateral estoppel. The court generally disfavors the
citation of orders and judgments; nevertheless, an order and judgment may be cited under
the terms and conditions of 10th Cir. R. 36.3.
sale and disposition of a firearm, in violation of 18 U.S.C. §§ 922(j) and 924(a)(2); and

possession of a firearm after former conviction of a felony, in violation of 18 U.S.C.

§§ 922(g) and 924(a)(2). She was sentenced to concurrent terms of 70 months’

imprisonment and 36 months’ supervised release on each count. Stevens was released

from confinement in January 2000 and began serving her concurrent terms of supervised

release. In October 2001, the probation office filed a petition seeking revocation of her

supervised release, alleging she had committed numerous violations of the conditions of

her supervised release. Stevens admitted four of those violations, but sentencing was

continued pending a term of inpatient and halfway house drug treatment.

       In May 2002, the probation office filed a petition seeking revocation of her

supervised release, alleging Stevens had failed to successfully participate in the drug

treatment programs ordered by the district court and had tested positive for

methamphetamine. Stevens admitted the allegations and was sentenced to concurrent

terms of 18 months’ imprisonment and 18 months’ supervised release on each of the

original counts of conviction.

       In June 2003, Stevens completed the terms of imprisonment and began serving her

terms of supervised release. On January 5, 2004, the probation office filed a petition

seeking revocation of her supervised release, alleging she had violated the terms of her

supervised release by possessing .14 grams of methamphetamine and a syringe. Stevens

admitted the allegations.


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       Stevens objected to the probation office’s recommendation that she be imprisoned

for a term of 18 months. She argued that “[b]ecause the statute governing imprisonment

following revocation of a term of supervised release (18 U.S.C. Sec. 3583(e)(3)) limit[ed]

[her] exposure to 24 months imprisonment, and she ha[d] already served 18 months, a

term of imprisonment of more than six months would violate the law.”1 ROA, Doc. 100

at 1. She further argued that the court could not get around this limitation by imposing

multiple and consecutive terms of imprisonment because the probation office only sought

revocation of a “term” of supervised release and it would be unconstitutional to “sentence

her for violating three terms of supervised release.” Id. at 4. Stevens argued that, since

the petition filed by the probation office did not “name[] which term of supervised release

[wa]s up for revocation,” it “pose[d] a notice problem under the Sixth Amendment.” Id.

at 5. Stevens also argued the doctrine of judicial estoppel prevented the government from

altering its previous position of treating her “terms of supervised release as a single unit.”

Id. at 6. The government agreed with Stevens that “the maximum term of imprisonment



       1
          Section 3583(e)(3) provides in pertinent part:
       The 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 for the offense that resulted in such term of supervised
       release without credit for time previously served on postrelease supervision,
       if the court . . . finds by a preponderance of the evidence that the defendant
       violated a condition of supervised release, except that a defendant whose
       term is revoked under this paragraph may not be required to serve on any
       such revocation . . . more than 2 years in prison if [the offense that resulted
       in the term of supervised release] is a class C or D felony.

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for each revoked term of Supervised Release [wa]s six months,” but asserted the district

court had authority under 18 U.S.C. § 3584(a) “to impose concurrent or consecutive

sentences upon revocation of concurrent terms of Supervised Release.” Id., Doc. 101 at

4, 2. The government also noted that multiple terms of imprisonment, whether imposed

as concurrent or consecutive terms, are treated for administrative purposes as a single

aggregate term of imprisonment, citing 18 U.S.C. § 3584(c). With respect to her notice

argument, the government responded that Stevens “wa[s] aware that there [we]re three

terms of supervised release that c[ould] be revoked as she was present at her original

sentencing,” and “[d]ue to the fact that these sentences were originally imposed to run

concurrent it [wa]s reasonable to understand that they [we]re all being addressed in th[e]

[revocation] proceeding.” Id. at 6. As for her judicial estoppel argument, the government

argued the doctrine was inapplicable because “[t]here ha[d] not been inconsistent

positions in this case.” Id.

       On April 2, 2004, the district court revoked Stevens’ terms of supervised release

and sentenced her to consecutive terms of six months’ imprisonment on each of the three

counts of conviction. In doing so, the district court stated: “A consecutive sentence was

imposed in order to reflect the seriousness of the offense, to promote respect for the law,

and to afford adequate deterrence to criminal conduct and to protect the public from

further crimes of the defendant.” ROA Vol. III at 8.

                                             II.


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                                       Lack of notice

       On appeal, Stevens contends the government failed to provide adequate notice that

it was seeking to revoke all three terms of supervised release and, in turn, that she would

be subject to three separate sentences of imprisonment if the district court decided to

revoke her terms of supervised release. In support of this contention, Stevens points to

the pleading filed by the probation office on January 5, 2004, seeking revocation. She

notes the reference in the pleading in a footnote recounting the background of her case

that she was serving a “term” of supervised release. The effect of this language, Stevens

argues, was to inform her “she was facing revocation of [only] one term of supervised

release, not three.” Aplt. Br. at 4. In other words, Stevens argues, “[s]he was never told

that all three counts to which she had been initially sentenced to serve a term of

supervised release were implicated by” the pleading filed by the probation office. Id.

       A defendant facing a possible revocation of supervised release is entitled to certain

minimum due process protections. See United States v. Chatelain, 360 F.3d 114, 121 (2d

Cir. 2004); United States v. Copeland, 20 F.3d 412, 414 (11th Cir. 1994); United States v.

Copley, 978 F.2d 829, 831 (4th Cir. 1992); cf. Gagnon v. Scarpelli, 411 U.S. 778, 782

(1973) (probation revocation); Morrissey v. Brewer, 408 U.S. 471, 480-82 (1972) (parole

revocation). These minimum protections include, among other things, written notice of

the claimed violation. See Morrissey, 408 U.S. at 489; cf. Fed. R. Crim. P. 32.1(b)(2)

(incorporating minimum due process protections). We review de novo whether the


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process actually afforded a criminal defendant comports with these minimum

requirements. See generally United States v. Tsosie, 376 F.3d 1210, 1213 (10th Cir.

2004) (applying de novo standard of review to question of law arising in connection with

revocation of defendant’s supervised release).

       After examining the record on appeal, we conclude Stevens’ arguments are

meritless. When the district court revoked Stevens’ initial terms of supervised release on

May 30, 2002, it sentenced her to 18 months’ imprisonment and 18 months’ supervised

release on each of the original counts of conviction, with the sentences to run

concurrently. Significantly, the district court imposed identical conditions of supervision

(both standard conditions and additional conditions) with respect to each term of

supervised release. Thus, when the probation office filed its pleading on January 5, 2004,

alleging Stevens had violated several conditions of supervision, Stevens knew or

reasonably should have known the alleged violations implicated not just one term of

supervised release, but all three terms. Although it is true, as asserted by Stevens, that the

pleading filed by the probation office erroneously stated she was serving a “term” of

supervised release at the time of the alleged violations, there is no dispute that the

pleading filed by the probation office provided Stevens with adequate notice of her

alleged misconduct, and it is likewise uncontroverted that Stevens ultimately admitted the

truth of those allegations. In sum, we conclude the pleading filed by the probation office

satisfied the minimum due process requirement of providing Stevens with notice of the


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alleged violations, and in turn Stevens knew or reasonably should have known that the

district court could revoke all three terms of supervised release if it found the alleged

violations to be true.

       Even if we were to assume the pleading filed by the probation office was

inadequate to satisfy the minimum due process standards, it is apparent that any resulting

error was harmless. See Fed. R. Crim. P. 52(a) (indicating “[a]ny error . . . that does not

affect substantial rights must be disregarded”); see generally United States v. Walker, 117

F.3d 417, 420-21 (9th Cir. 1997) (holding due process violations related to revocation of

supervised release were subject to harmless error review). As noted, Stevens was

convicted of three separate criminal violations, sentenced to concurrent terms of

imprisonment and supervised release on those convictions, and her admitted conduct

violated the conditions of each of the terms of supervised release. Thus, Stevens knew or

reasonably should have known that each of the terms of supervised release could (and

indeed would) be revoked if the district court determined she violated the conditions of

her terms of supervised release. Moreover, we note that Stevens fails to discuss what she

would have done differently if the pleading filed by the probation office had correctly

indicated she was serving multiple terms of supervised release rather than a single “term.”

                                      Judicial estoppel

       Stevens contends the government should be judicially estopped from arguing that

she violated, and thus is subject to revocation of, multiple terms of supervised release. In


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support of this argument, Stevens asserts the probation office and the prosecution have

repeatedly and consistently treated her “terms of supervised release as a single unit,

presumably since they were related.” Aplt. Br. at 7.

       The doctrine of “[j]udicial estoppel bars a party from adopting inconsistent

positions in the same or related litigation.” United States v. 162 MegaMania Gambling

Devices, 231 F.3d 713, 726 (10th Cir. 2000) (internal quotations omitted). In other

words, it “generally prevents a party from prevailing in one phase of a case on an

argument and then relying on a contradictory argument to prevail in another phase.” New

Hampshire v. Maine, 532 U.S. 742, 749 (2001) (internal quotations omitted).

       Although this circuit has historically rejected application of the doctrine, see 162

MegaMania, 231 F.3d at 726, the Supreme Court in New Hampshire recently indicated it

is applicable in federal court. 532 U.S. at 749-51. According to the Court, “several

factors typically inform the decision whether to apply the doctrine [of judicial estoppel] in

a particular case.” Id. at 750. “First, a party’s later position must be ‘clearly inconsistent’

with its earlier position.” Id. “Second, courts regularly inquire whether the party has

succeeded in persuading a court to accept that party’s earlier position, so that judicial

acceptance of an inconsistent position in a later proceeding would create the perception

that either the first or the second court was misled.” Id. (internal quotations omitted). “A

third consideration is whether the party seeking to assert an inconsistent position would

derive an unfair advantage or impose an unfair detriment on the opposing party if not


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estopped.” Id. at 751.

       This court has not addressed the appropriate standard for reviewing a district

court’s decision of whether to apply the doctrine of judicial estoppel. This is most likely

because, as noted, we have historically rejected application of the doctrine. The majority

of circuits that have addressed the standard of review question, however, have adopted an

abuse of discretion standard. See Alternative Sys. Concepts, Inc. v. Synopsys, Inc., 374

F.3d 23, 30-31 (1st Cir. 2004); Jaffe v. Accredited Sur. & Cas. Co., 294 F.3d 584, 595 n.7

(4th Cir. 2002); In re Coastal Plains, Inc., 179 F.3d 197, 205 (5th Cir. 1999); Talavera v.

Sch. Bd. of Palm Beach County, 129 F.3d 1214, 1216 (11th Cir. 1997); McNemar v.

Disney Store, Inc., 91 F.3d 610, 616-17 (3d Cir. 1996); Data Gen. Corp. v. Johnson, 78

F.3d 1556, 1565 (Fed. Cir. 1996); United States v. Garcia, 37 F.3d 1359, 1367 (9th Cir.

1994); see also Leonard v. Southwestern Bell Corp. Disability Income Plan, 341 F.3d

696, 700 (8th Cir. 2003) (discussing, but ultimately finding it unnecessary to decide, what

standard of review to apply); but see Eubanks v. CBSK Fin. Group, Inc., 385 F.3d 894,

897 (6th Cir. 2004) (applying a de novo standard).

       We need not decide here which standard of review should apply because Stevens’

judicial estoppel argument would fail under either standard. A review of the record on

appeal indicates the government has not, in fact, taken inconsistent positions in Stevens’

case. At worst, the government has, at times, carelessly and erroneously referred to

Stevens serving a “term” of supervised release rather than correctly noting she has at all


                                             9
times served three concurrent terms of supervised release. Notably, however, there is no

indication that these errors have operated in the government’s favor or to the detriment of

Stevens. Nor has Stevens established how recognition of the true facts would unfairly

operate to her detriment. In sum, none of the relevant factors cited by the Supreme Court

in New Hampshire are present in this case.

       AFFIRMED.

                                                  Entered for the Court

                                                  Mary Beck Briscoe
                                                  Circuit Judge




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