                                                                                                                           Opinions of the United
2008 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


12-15-2008

USA v. Leon Nisbett
Precedential or Non-Precedential: Non-Precedential

Docket No. 08-1875




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                                                     NOT PRECEDENTIAL
                        UNITED STATES COURT OF APPEALS
                             FOR THE THIRD CIRCUIT
                                  _____________

                                       No. 08-1875
                                      _____________

                            UNITED STATES OF AMERICA

                                             v.

                               LEON MARTIN NISBETT,

                                            Appellant
                                      _____________

                 On Appeal from the District Court of the Virgin Islands
                             (D. V.I. No. 03-cr-00021-001)
                      District Judge: Honorable Curtis V. Gomez
                                   _______________

                       Submitted Under Third Circuit LAR 34.1(a)
                                 December 12, 2008

             Before: FISHER, JORDAN and STAPLETON, Circuit Judges,

                                (Filed: December 15, 2008)
                                     _______________

                               OPINION OF THE COURT
                                   _______________

JORDAN, Circuit Judge.

       Leon Martin Nisbett (“Nisbett”) appeals from a Final Judgment and Commitment

Order of the District Court of the Virgin Islands of the United States for violating the

terms of his supervised release (the “Supervised Release Revocation Order”). Nisbett’s
attorney has filed a motion to withdraw as counsel from this case, along with a brief

pursuant to Anders v. California, 386 U.S. 738 (1967). We notified Nisbett of his right to

submit a pro se brief in support of his appeal and he has done so. For the reasons that

follow, we will grant counsel’s request to withdraw and affirm the Supervised Release

Revocation Order.

I.     Background

       Nisbett’s underlying conviction is for Failure to Appear, in violation of 18 U.S.C.

§ 3146(a)(1) and (b)(1)(A), and Carrying Dangerous Weapons, in violation of 14 V.I.C. §

2253(a). His sentence included a three-year term of supervised release, the terms of

which included, but were not limited to, (1) reporting to the United States Office of

Probation between the first and fifth of each month; (2) refraining from the unlawful use

of a controlled substance; (3) not leaving the District of the Virgin Islands without

permission from the Court or his probation officer; and (4) notifying the probation office

within seventy-two hours of any arrest.

       In July 2007, the United States Probation Office issued a warrant for Nisbett’s

arrest for violating the terms of his supervised release by failing to report to his probation

officer. Furthermore, in January 2008, the Probation Office discovered that Nisbett was

in custody in Antigua, West Indies on suspicion of a double homicide. He was then

expelled from Antigua and, upon his arriving in Puerto Rico, was arrested on the

outstanding warrant for violating the terms of his supervised release. The Probation



                                              2
Office discovered that Nisbett had also been earlier arrested in the Virgin Islands for

possessing twenty-seven small bags of marijuana. Prior to the issuance of the arrest

warrant in July 2007, Nisbett had last reported to the Probation Office on February 2,

2007, and had failed to report his arrests.

       In March 2008, the District Court held a hearing on the possible revocation of

Nisbett’s supervised release. Probation Officer Brian Smith testified about Nisbett’s

violations and, based on that evidence, the Court found that Nisbett had breached the

conditions of release and “resentenced [him] to nine (9) months incarceration with a two

(2) year period of supervised release.” (A-19, 38, 51-52.) The Supervised Release

Revocation Order was issued in April 2008 and this appeal followed.

II.    Discussion

       The District Court had jurisdiction over this matter pursuant to 18 U.S.C. § 3231

and 48 U.S.C. § 1612(a). We exercise jurisdiction pursuant to 28 U.S.C. § 1291.1

       Our Court’s Local Appellate Rule 109.2(a) provides that “[w]here, upon review of

the district court record, trial counsel is persuaded that the appeal presents no issue of

even arguable merit, trial counsel may file a motion to withdraw and supporting [Anders]



       1
        The government has the burden of proving a violation of a defendant’s supervised
release by a preponderance of the evidence. 18 U.S.C. § 3583(e)(3); United States v.
Maloney, 513 F.3d 350, 354 (3d Cir. 2008). We review the District Court’s decision to
revoke supervised released for abuse of discretion. Maloney, 513 F.3d at 354 (citing
Virgin Islands v. Martinez, 239 F.3d 293, 297 (3d Cir. 2001)). The factual findings
supporting that decision are reviewed for clear error and the legal issues are subject to de
novo review. Id. (internal citations omitted).

                                              3
brief.” In considering counsel’s Anders brief, we examine: “whether counsel adequately

fulfilled the rule’s requirements,” and “whether an independent review of the record

presents any nonfrivolous issues.” United States v. Youla, 241 F.3d 296, 300 (3d Cir.

2001). To fulfill the requirements of Rule 109.2(a), the brief must “satisfy the court that

counsel has thoroughly examined the record in search of appealable issues” and “explain

why the issues are frivolous.” Id. (citing United States v. Marvin, 211 F.3d 778, 780 (3d

Cir. 2000)). At a minimum, the brief must assure us that counsel has made a

conscientious examination of the record. Id.

       In this case, defense counsel’s brief plainly demonstrates the requisite examination

of the record and provides the necessary explanation as to why the issues Nisbett wishes

to raise are frivolous. We also conclude, after our own independent analysis of the

record, that this appeal presents no non-frivolous issues.

       Nisbett raises several objections to the findings of the District Court. The first, an

allegation that the District Court lacked jurisdiction, is frivolous on its face and warrants

no discussion. We also decline to address the charge of ineffective assistance of counsel,

as it is well settled that such claims are generally to be raised in collateral proceedings.

United States v. Thornton, 327 F.3d 268, 271 (3d Cir. 2003). The remaining issues are

discussed briefly.




                                               4
       A.     The Government Had Probable Cause To Seek Revocation of Nisbett’s
              Supervised Release, As Demonstrated By Sufficient Evidence

       Nisbett breached the conditions of his supervised release by leaving the country

without permission and by being arrested twice and failing to report those arrests to his

probation officer. Brian Smith of the Probation Office testified to those violations. As to

the assertion that Probation Officer Smith’s testimony relied on hearsay, we note that

hearsay is permitted in revocation hearings. See F ED. R. E VID. 1101(d)(3). Based on the

evidence recounted in that testimony, which supported the charged violations, the

government had probable cause to seek the revocation of Nisbett’s supervised release.

       B.     Nisbett Received Proper Notice Of The Revocation Hearing And The
              Alleged Violations

       Nisbett broadly asserts that his due process rights were violated because he didn’t

receive adequate notice of the alleged violations. The District Court addressed at the

revocation hearing the alleged deficiencies in the notice, and Nisbett’s counsel

acknowledges that Nisbett “was given written notice of the claimed violations of the

supervised release and the evidence against him.” (Appellant Br. at 7 (citing United

States v. Maloney, 513 F.3d 350, 356 (3d Cir. 2008) (citing, inter alia, F ED. R. C RIM. P.

32.1)).) Nisbett has not provided any evidence to the contrary.

       Nisbett also argues that his due process rights were violated because the revocation

hearing occurred in St. Thomas, while he had a right to be heard in St. Croix, where the

warrant was issued. Both St. Thomas and St. Croix fall within the jurisdiction of the



                                              5
District Court of the Virgin Islands. There is no right to be heard in a specific courthouse

within the jurisdiction of that Court. In short, there is nothing to suggest a deprivation of

due process in this case.

III.   Conclusion

       Accordingly, counsel’s request to withdraw will be granted and the District

Court’s Supervised Release Revocation Order will be affirmed, without prejudice to any

ineffective assistance of counsel claim Nisbett may choose to pursue hereafter in an

appropriate proceeding.2




       2
           This qualification implies nothing about the merits of any such claim.
                                                6
