                                                          [DO NOT PUBLISH]


              IN THE UNITED STATES COURT OF APPEALS

                      FOR THE ELEVENTH CIRCUIT                     FILED
                        ________________________         U.S. COURT OF APPEALS
                                                           ELEVENTH CIRCUIT
                                                               October 21, 2005
                               No. 04-15782                 THOMAS K. KAHN
                           Non-Argument Calendar                CLERK
                         ________________________

                     D. C. Docket No. 95-00448-CR-JLK

UNITED STATES OF AMERICA,


                                                                Plaintiff-Appellee,

                                    versus

DERRICK CUNNINGHAM,

                                                          Defendant-Appellant.


                         ________________________

                 Appeal from the United States District Court
                     for the Southern District of Florida
                       _________________________
                             (October 21, 2005)


Before BIRCH, DUBINA and BARKETT, Circuit Judges.

PER CURIAM:

     Appellant Derrick Cunningham, a state prisoner proceeding pro se, appeals
the district court’s order denying his request for a hearing on his supervised release

violation.

      While Cunningham was on supervised release after completion of his

sentence for possession with intent to distribute cocaine, in violation of 21 U.S.C.

§ 841(a)(1) and 18 U.S.C. § 2, the Probation Officer (“PO”) petitioned the district

court for the issuance of a warrant for Cunningham’s arrest for violating the

conditions of his supervised release. The PO alleged that Cunningham violated a

mandatory condition of the terms of his supervised release, i.e., he failed to refrain

from violating the law. The PO stated that Cunningham was arrested on state

charges of sale and trafficking of cocaine in Miami-Dade County. The district

court ordered the issuance of an arrest warrant. Although the warrant was issued,

it was not executed because Cunningham was serving his state sentence at that

time. Cunningham filed a motion asking the district court to hold a hearing in the

revocation proceedings and to transfer him to federal custody, which the district

court denied.

      On appeal, Cunningham argues that the district court erred in denying his

requests for disposition of his pending supervised release1 revocation proceeding

and transfer to federal custody. Cunningham also claims that the district court’s



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          Cunningham incorrectly refers to the proceeding as one for violation of his probation.

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refusal to afford him a prompt hearing in the supervised release revocation

proceeding violated his due process rights. Cunningham contends that the

government’s failure to bring him into federal custody for the supervised release

violation deprived him of the ability to serve his state sentence concurrently with

any federal sentence that might be imposed for the supervised release violation.

Moreover, because a federal detainer has been lodged based on the supervised

release violation proceeding, he was prevented from attending his mother’s funeral,

and his state custody level and status cannot be lowered. Cunningham asserts that

his guilty pleas on the Florida state charges were “predicated entirely upon

concurrent federal and state sentences to be serve[d] in federal prison, as opposed

to the consecutive federal and state sentences that would result from the federal

district court judge [continuous] refusal to afford appellant a preliminary probation

hearing, pursuant to Rule 32.1 of the Fed.R.Crim.P.” (emphasis in original).

      We review legal questions concerning the Rules of Criminal Procedure and

constitutional claims de novo. See United States v. Noel, 231 F.3d 833, 836 (11th

Cir. 2000). Federal Rule of Criminal Procedure 32.1(a)(1) provides, that “[a]

person held in custody for violating . . . supervised release must be taken without

unnecessary delay before a magistrate judge.” See 32.1(a)(1) (emphasis added).

Rule 32.1(b)(1)(A) provides, in relevant part, that “[i]f a person is in custody for



                                           3
violating a condition of . . . supervised release, a magistrate judge must promptly

conduct a hearing to determine whether there is probable cause to believe that a

violation occurred.” See Fed.R.Crim.P. 32.1(b)(1)(A) (emphasis added). “If the

judge finds probable cause, the judge must conduct a revocation hearing.” See

Fed.R.Crim.P. 32.1(b)(1)(C). The revocation hearing must be conducted “within a

reasonable time” in the district court having jurisdiction. See Fed.R.Crim.P.

32.1(b)(2).

      Rule 32.1 applies only to those individuals in custody solely for the violation

of probation or supervised release. See United States v. Pardue, 363 F.3d 695,

697-98 (8th Cir. 2004); see also Fed.R.Crim.P. 32.1(a)(1) & (b)(1)(C). Rule 32.1 is

triggered only when the defendant is taken into federal custody for violations of

supervised release, not by issuance of a warrant for the defendant’s arrest. See

Fed.R.Crim.P. 32.1(a)(1) & (b)(1)(A).

      There is no constitutional duty to provide petitioner an adversary parole

hearing until he is taken into custody as a parole violator by execution of the

warrant. See Moody v. Daggett, 429 U.S. 78, 89, 97 S.Ct. 274, 280, 50 L.Ed.2d

236 (1976); see also United States v. Chaklader, 987 F.2d 75, 77 (1st Cir. 1993).

“[I]t is within the district court's power to order that a federal sentence not begin

until the completion of a state sentence.” See United States v. Adair, 826 F.2d



                                            4
1040, 1041 (11th Cir. 1987). A federal sentencing court is not bound by a state

plea bargain unless the federal government directly or indirectly was involved in

the state plea bargaining process. Meagher v. Clark, 943 F.2d 1277, 1282 (11th

Cir. 1991).

      “As long as the conditions or degree of confinement to which the prisoner is

subjected is within the sentence imposed upon him and is not otherwise violative

of the Constitution, the Due Process Clause does not in itself subject an inmate's

treatment by prison authorities to judicial oversight.” See Montanye v. Haymes,

427 U.S. 236, 242, 96 S.Ct. 2543, 2547, 49 L.Ed.2d 466 (1976); see also Daggett,

429 U.S. at 88 n.9, 97 S.Ct. at 279 n.9.

      After reviewing the record, we conclude that Cunningham was not entitled

to be transferred to federal custody for initiation of a supervised release violation

hearing. The district court is not required to conduct a supervised release violation

hearing until Cunningham is taken into federal custody after he completes his

sentences for the state convictions. Cunningham’s argument that his due process

rights were violated as a result of the delay between the district court’s issuance of

a warrant and any future supervised release violation hearing that may be held is

without merit. Because Cunningham was not in federal custody, he was not

entitled to an adversarial hearing. Further, Cunningham’s claim that, when



                                           5
pleading guilty on the state charges, he bargained for a sentence that was

concurrent to his federal sentence is meritless. Moreover, a federal sentencing

court is not bound by a state plea bargain unless the federal government directly or

indirectly was involved in the state plea bargaining process, and there is no

evidence in this case that the federal government was so involved. Finally,

Cunningham’s other due process arguments, i.e., that the federal detainer lodged

against him prevented him from attending his mother’s funeral and from having his

custody status and level reduced are without merit. Accordingly, we affirm the

district court’s order denying Cunningham’s request for a hearing on his

supervised release violation.

      AFFIRMED.




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