                                                   NOT PRECEDENTIAL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

                                       No. 16-3719
                                       __________

                          UNITED STATES OF AMERICA

                                            v.

                           RONALD GOODE, a/k/a Black,
                                           Appellant
                                 __________

                    On Appeal from the United States District Court
                        for the Eastern District of Pennsylvania
                           (E.D. Pa. No. 2-02-cr-00828-001)
                    District Judge: Honorable Michael M. Baylson

                                    Argued May 9, 2017

            BEFORE: AMBRO, COWEN, and NYGAARD, Circuit Judges

                                 (Filed: June 26, 2017)


Keith M. Donoghue
Jacob Schuman       [Argued]
601 Walnut Street
The Curtis Center, Suite 540 West
Philadelphia, PA 19106
      Counsel for Appellant


Bernadette A. McKeon        [Argued]
Office of United States Attorney
615 Chestnut Street
Suite 1250
Philadelphia, PA 19106
       Counsel for Appellee
                                        __________

                                         OPINION*
                                        __________

NYGAARD, Circuit Judge.

       Ronald Goode appeals the District Court’s imposition of a 27-month sentence for

violating the terms of his supervised release. Goode maintains that his due process rights

were violated by the District Court’s delay in holding a revocation hearing. While the

delay underlying Goode’s case at first glance seems unusually lengthy, we cannot

identify a constitutional violation that would give rise to a due process claim. Thus, we

will affirm the District Court’s sentence.

                                             I.

                                             A.

       Goode pleaded guilty in 2003 to federal drug charges. He served 130 months in

prison. In March of 2011, Goode was released from federal prison, and began serving a

five-year term of supervised release. Four months into his supervised release term,

Goode was arrested on state charges of attempted murder, assault, and various firearms

infractions. The day after Goode’s arrest, the federal probation office filed a Violation of

Supervised Release petition, which the District Court signed the next day. Although a

federal arrest warrant for Goode was issued on July 15, 2011, the District Court would

not hold a hearing on the matter until September of 2016. This hiatus forms the



*
 This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
                                             2
gravamen of Goode’s complaint. For ease of reference, we include the following

chronological summary of events, noting dates of relevance to this appeal:

1/27/2003      Goode pleads guilty to one count of conspiracy to distribute crack cocaine

6/9/2003       Goode sentenced to 162 months’ imprisonment, five years of supervised
               release, and $1000 fine
3/14/2011      Goode completes jail time and begins his term of supervised release.
5/10/2011      Goode volunteers for and is accepted to the Eastern District’s STAR
               program (supervision to aid re entry)
7/13/2011      Goode arrested by Philadelphia police department and charged with
               attempted murder, aggravated assault, and several firearms offenses
7/14/2011      United States Probation Office files a revocation petition on the basis of
               Goode’s arrest
7/15/2011      The District Court signs the petition and issues an arrest warrant.
11/2011        Goode requests a continuance of state court trial
11/2011        Goode requests another continuance to explore a plea bargain
7/2012         Trial set in state court but continued
2/2013         Goode’s counsel permitted to withdraw and new counsel appointed
5/2013         Goode’s counsel request a jury trial
12/4/2013      Jury is selected
12/9/2013      State trial postponed due to issue with a witness
12/18/2013     New counsel appointed and trial postponed again
6/2/2014       Goode files motion in the District Court asking for a hearing on his
               supervised relief violation
10/2/2014      Goode pleads guilty in Philadelphia Common Pleas Court to aggravated
               assault and firearms offenses
11/19/2014     District Court construes motion as one asking to lift federal detainer and
               denies it because the detainer was not yet operative
6/2015         Goode again writes to federal court asking for counsel and a revocation
               hearing. He explains that state court has not sentenced him because it is
               waiting for federal court to sentence on violation of supervised release.
12/20/2015     Goode sentenced in state court to two and one half to five years
               imprisonment
1/27/2016      Goode makes third request for federal court to go forward with his
               revocation hearing.
7/16/2016      Goode completes state court sentence and is released from state custody
9/7/2016       Goode is arrested by federal authorities on the arrest warrant
9/12/2016      Goode admits to violating supervised release and is sentenced to 27
               months’ imprisonment


                                            3
                                              B.

       Before turning to a discussion of the issues raised in this appeal, we need to

resolve the parties’ disagreement over the appropriate standard of review. The

Government urges us to apply a plain error standard of review, maintaining that Goode

never sought to dismiss the petition for revocation on due process grounds (or any other

basis, for that matter). Goode, for his part, maintains that he did object to the delay in the

revocation hearing by the filing of three pro se motions in the District Court asking it to

proceed on the petition, and specifically invoking his right to due process.

       We side with Goode here and will not review this appeal for plain error. First,

Goode’s pro se filings satisfy Fed. R. Crim. P. 51(b), which defines the preservation rule

in criminal cases. Through these filings, Goode informed the District Court what he

wanted it to do. Second, the Government’s position elevates form over function. While

it may be true that defendants “typically” object through a motion to dismiss the violation

petition (see Gov’t Br. at 16-17), there is no rule that says any objection must be made

that way. We will, therefore, exercise plenary review over the alleged violations of the

Constitution. See United States v. Battis, 589 F.3d 673, 677 (3d Cir. 2009).

                                              II.

                                             A.

       Hearings to revoke supervised release, like hearings to revoke parole, are not

criminal prosecutions. As such, these proceedings do not trigger the “full panoply of

rights’ which attach during a criminal trial, including the Sixth Amendment’s guarantee

of a ‘speedy trial.” Morrissey v. Brewer, 408 U.S. 471, 480 (1972). These proceedings

                                              4
do, however, affect the liberty interests of individuals, and trigger limited protections

under the Due Process Clause. Id. at 484. One due process right triggered by a

revocation proceeding is the right to have a “revocation hearing . . . within a reasonable

time after the parolee is taken into custody.” Id. at 488. This right has been codified in

Fed. R. Crim. P. 32.1(b)(2), which requires that courts “must hold the revocation hearing

within a reasonable time.” When evaluating claims under Fed. R. Crim. P. 32.1, courts

often look to the factors the Supreme Court laid out in Barker v. Wingo, 407 U.S. 514

(1972), because of the analogous context of the Sixth Amendment right to speedy trial.

United States v. Poellnitz, 372 F.3d 562, 570 (3d Cir. 2004). Those factors are: “[l]ength

of delay, the reason for the delay, the defendant's assertion of his right, and prejudice to

the defendant.” Barker, 407 U.S. at 530. We will start with the prejudice inquiry, as our

determination on that point renders further inquiry unnecessary.

       Although Goode points to what he believes was a five-year delay, it was not as

long as he supposes. This is because Goode’s right to a timely revocation hearing is

measured from the time he was taken into custody pursuant to the revocation arrest

warrant—not from the time the arrest warrant was issued. Morrissey, 408 U.S. at 486 (a

defendant has the right to have a revocation hearing within “a reasonable time after the

parolee is taken into custody.”). This makes sense because a parolee does not suffer a

loss of liberty as a parole violator until he is taken into custody per the violation order.

       Goode takes issue with this measurement. He maintains that the delay should be

measured from the date the revocation warrant was issued. He cites one of our decisions

in support of his position, Poellnitz, supra. But his reliance on that decision is misplaced.

                                               5
First, Poellnitz involved a statutory claim brought under 18 U.S.C. § 3583(i)—not a

straight-up due process claim like Goode’s. Second, we specifically stated in Poellnitz

that “it was reasonable for the District Court to wait for the adjudication of the state court

charges before proceeding with the revocation hearing.” Poellnitz, 372 F.3d at 571.

Here, the adjudication of the charges in state court took a great deal of time, due to

various delays, changes of counsel, etc. After his release from state custody (July 16,

2016), Goode was arrested by federal authorities (September 7, 2016), and the District

Court held a revocation hearing a mere five days later (September 12, 2016). Goode did

not suffer a loss of liberty until September 7, 2016 (a Wednesday), and was given a

hearing on September 12, 2016 (the following Monday). This delay was not

unreasonable, and, therefore, Goode’s rights were not violated.

       Goode claims he was prejudiced because the District Court’s delay in holding a

revocation hearing ruined an opportunity for his federal and state sentences to run

concurrently. This argument is also foreclosed by U.S. ex rel. Caruso v. U.S. Bd. of

Parole, 570 F.2d 1150, 1154 (3d Cir. 1978), which clarifies that a defendant cannot claim

prejudice from a delay in receiving a revocation hearing on the ground that the delay

prohibited him from serving his federal and state sentences concurrently. Id.

Furthermore, the District Court certainly could have ordered—given its considerable

discretion in sentencing matters—that Goode’s federal sentence for violating supervised

release run retroactively concurrently with his state sentence. And, Goode’s counsel in

the District Court asked that this option be considered. App. 45-46. The District Court



                                              6
specifically declined to do so. App. 49. It determined that “another prison sentence” was

warranted given Goode’s crime, and we will not disturb that conclusion on appeal.

       Goode also maintains that he was prejudiced by the delay of his revocation

hearing because he was “subjected to another arrest” and because the District Court was

able to rely on his state conviction as an “aggravating factor” in sentencing him on the

supervised release violation. These claims are pointless. First, Goode’s argument about

being subject to an additional arrest is baseless. He argues that if he had been given a

timely revocation hearing, he could have been transported to federal prison directly from

state prison without having to be arrested again. But, he enjoyed a few months at liberty

after his state sentence was completed and before his federal sentence began. He

certainly was not clamoring to go directly to federal prison to avoid re-arrest.

       Goode also tells us that, given the length of delay between the revocation petition

and the hearing, prejudice should be presumed. We disagree. First, and as discussed

previously, the delay is not as long as Goode thinks. We put it at five days, two of which

were the weekend. Second, while it is true that prejudice has been presumed in some

instances involving Sixth Amendment claims, see e.g., Doggett v. United States, 505 U.S.

647, 655 (1992) (A]ffirmative proof of particularized prejudice is not essential to every

speedy trial claim.”); Battis, 589 F.3d at 684, no court has ever presumed prejudice from

a delay in a revocation hearing. See, e.g., Santana, 526 F.3d at 1261 (“[W]e apply our

ordinary test in supervised release revocation cases and search for actual prejudice.”).

       Our decision in United States v. Heiser, 15 F.3d 299 (3d Cir. 1994), does leave

open the possibility that a situation may arise where a court may presume prejudice in a

                                              7
post-conviction delay context, but this is not such a case. The Supreme Court has

recognized that the most serious form of prejudice is that which results in the impairment

of an acused’s ability to lodge a defense. Doggett, 505 U.S. at 655-56. Here, nothing

prevented Goode from raising a defense to the charges of violating supervised release,

and, in fact, he pleaded guilty to those charges. This is reason enough to decline applying

a presumption of prejudice. But also, Goode admitted that he violated the terms of his

supervised release, which too weighs against a presumption of prejudice. And, he has not

pointed to anything that could have shown that he was denied a chance for leniency on

his revocation sentence.

                                            III.

       Goode cannot show prejudice here for any delay between the petition for

revocation being executed and his hearing on the matter. There is no basis on this record

to vacate the District Court’s order. We will affirm.




                                             8
