                                                           NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ____________

                                    No. 09-4562
                                    No. 09-4563
                                   ____________

                           UNITED STATES OF AMERICA

                                          v.

                              JAMAROW TROWERY,

                                         Appellant
                                   ____________

                   On Appeal from the United States District Court
                        for the Western District of Pennsylvania
                                (D.C. No. 04-cr-00095)
                   District Judge: Honorable David Stewart Cercone
                                    ____________

                      Submitted Under Third Circuit LAR 34.1(a)
                                  October 19, 2010

      Before: HARDIMAN, GREENAWAY, JR. and NYGAARD, Circuit Judges.

                             (Filed: November 10, 2010)

                                   ____________

                             OPINION OF THE COURT
                                  ____________

HARDIMAN, Circuit Judge.

      Jamarow Trowery appeals the District Court’s revocation of his supervised

release. We will affirm.
                                             I.

       In 2006, Trowery pleaded guilty to Possession of a Firearm by a Convicted Felon,

18 U.S.C. § 922(g), and was sentenced to 40 months imprisonment followed by 3 years

supervised release. Among the conditions of his supervised release were prohibitions on

“possess[ing] a firearm or destructive device” or “violat[ing] another federal, state or

local crime.” In April 2007, Trowery completed his prison term and began his term of

supervised release. Less than six months later, Trowery was arrested for two state

crimes: Possession of a Firearm by a Convicted Felon, 18 PA. CONS. STAT. § 6105, and

Cruelty to Animals, 18 PA. CONS. STAT. § 5511. A jury convicted Trowery of both

offenses, and he was sentenced to 5 to 10 years imprisonment.

       Two months after his state court sentencing, the United States Probation Office

filed a petition to revoke Trowery’s supervised release for violating the aforementioned

conditions of release. Following a revocation hearing, the District Court concluded that

Trowery violated the terms of his supervised release. As a result, the Court revoked

Trowery’s supervised release and sentenced him to 12 months imprisonment to be served

consecutively with the state court sentence. The District Court also noted that if

Trowery’s state court convictions were overturned on appeal, there would be ample time

to revisit his federal revocation sentence before his federal prison sentence began.

Trowery timely appealed.

                                                  II.

       We review the District Court’s decision to revoke Trowery’s supervised release

for abuse of discretion. Gov’t of the V.I. v. Martinez, 239 F.3d 293, 297 (3d Cir. 2001).


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Underlying factual findings are reviewed for clear error and legal issues are reviewed de

novo. United States v. Poellnitz, 372 F.3d 562, 565-66 & n.6 (3d Cir. 2004) (citing

United States v. Blackston, 940 F.2d 877, 882 (3d Cir. 1991)). The District Court had

jurisdiction under 18 U.S.C. § 3231 and we have jurisdiction under 18 U.S.C. § 1291.

       Trowery challenges the sufficiency of the evidence underlying the District Court’s

decision to revoke his supervised release. The District Court found that a jury conviction,

without more, is sufficient evidence to demonstrate that Trowery committed two state

crimes, thereby violating the terms of his release. Trowery contends that the convictions

alone are insufficient because he never admitted the underlying conduct and he has

appealed the convictions. This argument is based on a misreading of United States v.

Poellnitz, 372 F.3d 562 (3d Cir. 2004).

       A supervised release violation must be proven by a mere preponderance of the

evidence. 18 U.S.C. § 3583(e)(3); United States v. Dees, 467 F.3d 847, 854-55 (3d Cir.

2006). “What matters is whether [the defendant] committed [a] crime as a matter of

fact.” Poellnitz, 372 F.3d at 567. In order “to revoke probation it is not necessary that

the probationer be adjudged guilty of a crime, but only that the court be reasonably

satisfied that he has violated one of the conditions” of supervised release. Id. at 566.

Although a jury conviction is not necessary to show a violation, it is plainly sufficient.

Indeed, a jury conviction is the strongest evidentiary basis for finding a violation because

a jury conviction is itself a finding of fact beyond a reasonable doubt. See, e.g.,

Commonwealth v. Aponte, 855 A.2d 800, 811 (Pa. 2004) (“[A] prior conviction is an




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objective fact that initially was cloaked in all the constitutional safeguards, and is now a

matter of public record.”).

       Our conclusion is not altered by the fact that Trowery is appealing his state

convictions. Under Pennsylvania law, a criminal conviction continues to have preclusive

effect while on appeal “unless or until that conviction is reversed.” Shaffer v. Smith, 673

A.2d 872, 875 (Pa. 1996). As our sister circuits have held:

       A criminal conviction after a trial at which the probationer was entitled to
       all the protections afforded a criminal defendant including formal rules of
       evidence, the right to assigned counsel if indigent, and the requirement that
       the state establish guilt beyond a reasonable doubt certainly affords a more
       than sufficient basis for revocation of probation, even if that conviction is
       still awaiting appellate review.

Roberson v. Connecticut, 501 F.2d 305, 308 (2d Cir. 1974); see also United States v.

Spraglin, 418 F.3d 479 (5th Cir. 2005); United States v. Fleming, 9 F.3d 1253 (7th Cir.

1993). Like these courts, we hold that a criminal conviction is sufficient evidence to

revoke supervised release even if the case is on appeal, and even if counsel claims that

appeal is meritorious. As the District Court explained, if Trowery’s state appeal is

successful, there will be ample time to revisit the revocation.

       Still, Trowery argues that Poellnitz dictates a contrary result. Poellnitz was also

sentenced to supervised release that prohibited committing any “federal, state, or local”

crimes. Poellnitz, 372 F.3d at 564. While on supervised release, Poellnitz was arrested

and charged with a number of state crimes to which he pleaded nolo contendere. Id.

Based solely on the fact of those convictions, the District Court revoked Poellnitz’s

supervised release. On appeal, we held that a nolo contendere plea, without more, was

insufficient to establish that Poellnitz violated a condition of supervised release. We

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reasoned that under Pennsylvania law, “[i]n pleading nolo contendere; the defendant does

not admit his guilt, but merely consents to being punished as if he were guilty.” Id. at

568. As a result, we concluded “a nolo plea . . . has no evidentiary value in assessing

whether the defendant committed a crime.” Id. at 567.

       Although we found the absence of a guilty plea controlling in Poellnitz, that was

only because of “the peculiar legal effect of the plea of nolo contendere[,]” which arises

without a verdict and “is indisputably tantamount to a conviction, [but] . . . is not

necessarily tantamount to an admission of factual guilt.” 372 F.3d at 566 (first emphasis

added). In that context, we found that the controlling question was “whether the plea that

Poellnitz entered can be deemed to establish underlying guilt, and not merely the fact of a

criminal conviction.” Id. at 567. We were careful, however, to contrast a nolo

contendere plea with a verdict that establishes guilt beyond a reasonable doubt: “[i]n the

normal course, one might expect that if the court finds [that a] defendant was convicted

of a crime, the court may automatically revoke release based on the defendant’s

commission of the underlying offense.” Id. at 566. The instant appeal is that normal

course.

       For the foregoing reasons, we will affirm the District Court’s revocation of

Trowery’s supervised release.




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