                                                           NOT PRECEDENTIAL

                   UNITED STATES COURT OF APPEALS
                        FOR THE THIRD CIRCUIT
                             _____________

                                  No. 10-4172
                                 _____________

                        UNITED STATES OF AMERICA

                                        v.

                     MICHAEL ANTHONY POINDEXTER,
                                           Appellant
                             _____________

                  Appeal from the United States District Court
                     for the Western District of Pennsylvania
                     (D.C. Criminal No. 1-98-cr-00013-003)
                 District Judge: Honorable Maurice B. Cohill, Jr.
                                 _____________

                   Submitted Under Third Circuit LAR 34.1(a)
                              September 12, 2011

           Before: RENDELL, JORDAN and BARRY, Circuit Judges

                       (Opinion Filed: September 12, 2011)
                                 _____________

                           OPINION OF THE COURT
                               _____________

RENDELL, Circuit Judge.

      Appellant Michael Anthony Poindexter (“Poindexter”) appeals a judgment

entered in the Western District of Pennsylvania revoking his supervised release.

Poindexter contends the District Court violated his due process rights when it

revoked his supervised release because it based the revocation upon conduct
which had previously been punished and he was not warned that he could be

punished twice when he agreed to the original punishment. The District Court had

subject matter jurisdiction pursuant to 18 U.S.C. § 3231 and this Court has

jurisdiction pursuant to 28 U.S.C. § 1291. We exercise de novo review over the

claim that a district court violated due process by revoking probation and imposing

a sentence of imprisonment. United States v. Barnhart, 980 F.2d 219, 222 (3d Cir.

1992). We will affirm.

       In 1999, Poindexter was convicted under 21 U.S.C. § 846 and sentenced to

140 months in prison followed by 5 years of supervised release. Pursuant to 18

U.S.C. § 3582(c)(2), his sentence was reduced and he was released on March 20,

2009. Poindexter soon violated several conditions of his release by using illegal

substances, failing to appear at a scheduled meeting with his probation officer, and

obtaining new criminal charges for assault. After Poindexter waived his rights to

both a hearing and counsel, the District Court granted the probation office’s

request to modify the conditions of his release to include a 180 day period of home

confinement with electronic monitoring and an additional condition that he not

use, possess, or purchase alcohol. The District Court added a notation that “any

future violations may result in revocation of supervision.” A second petition was

filed, but was later withdrawn pending the resolution of the assault charge. On

August 23, 2010, Poindexter pled guilty to assault and was sentenced to two to

twelve months in prison. The probation office filed a third petition on October 10,

2010, listing the following violations: tested positive for cocaine on two occasions,


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failed to submit to a preannounced drug test, failed to submit monthly reports,

failed to abide by the restriction that he not associate with felons, failed to

truthfully answer inquiries from the probation officer, and conviction of a crime.

On October 12, 2010, the District Court revoked his supervised release pursuant to

18 U.S.C. § 3583(e)(3) and sentenced him to a term of twelve months and one day

of imprisonment followed by thirty six months of supervised release. 1 Poindexter

filed a timely appeal.

       The single issue on appeal is whether the District Court violated

Poindexter’s due process rights when it revoked his supervised release. While

supervised release, probation, and parole are not stages of criminal prosecution,

they result in a loss of liberty; therefore, minimum requirements of due process are

required. Gagnon v. Scarpelli, 411 U.S. 778, 782 (1973). The minimum due

process requirements for modification and revocation of supervised release are

codified in Federal Rule of Criminal Procedure 32.1. 2 The rights provided by Rule

32.1 may be waived, so long as the waiver is signed knowingly and voluntarily.

Brady v. United States, 397 U.S. 742, 748 (1970)(waivers of constitutional rights

must be knowingly and voluntarily made). The violation of supervised release

1
 Pursuant to U.S.S.G. § 7B1.1(a), the District Court determined Poindexter’s most
serious violation – the assault conviction – qualified as Grade C and his Criminal
History category was VI. This produced a guideline sentencing range of 8 to 14
months under the revocation table in U.S.S.G. § 7B1.4(a).
2
 Modification. In General. “Before modifying the conditions of probation or
supervised release, the court must hold a hearing, at which the person has the right
to counsel and an opportunity to make a statement and present information in
mitigation.” Fed. R. Crim. P. 32.1(c)(1).

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must be proven by a preponderance of the evidence. United States v. Maloney, 513

F.3d 350, 354 (3d Cir. 2008). In order to revoke probation, it is necessary “only

that the court be reasonably satisfied that [the probationer] has violated one of the

conditions of his probation.” Barnhart, 980 F.2d at 223 (quoting United States v.

Manuszak, 532 F.2d 311, 317 (3d Cir. 1976)).

       Poindexter contends that his due process rights were violated when the

District Court revoked his supervised release. He maintains that his waivers of

hearing and counsel at modification were not knowing and voluntary because he

did not understand that he might be subject to more penalties in the event of his

conviction on the assault charge. Poindexter claims that a reasonable person would

have assumed that his punishment for the assault conduct ended with the

modification. Since his waivers were signed based on this misunderstanding,

Poindexter argues that they violated due process, and are invalid.

       The minimum requirements for modification and revocation of supervised

release have been satisfied here. Under the totality of the circumstances,

Poindexter knowingly and voluntarily waived his rights to both counsel and a

hearing on the modification of his supervised release as required by Federal Rule

of Criminal Procedure 32.1(c)(2). The probation officer read the waivers to

Poindexter and Poindexter read them himself prior to signing. He was also warned

in writing upon the modification that, “any future violations may result in

revocation of supervision.” Poindexter has never claimed the language was

unclear or ambiguous in any way.


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       Additionally, and even more telling, this argument overlooks Poindexter’s

numerous other violations and the reasoning behind both the modification and

revocation. It is clear to us that these petitions hang on violations other than

merely the assault charge; therefore, the mere fact that the assault is mentioned in

both petitions does not violate Poindexter’s due process rights. The District Court

concluded that there was no due process violation reasoning that, although both

petitions referenced the assault, the petition for modification focused on the drug

violations, while the petition for revocation referenced a series of other violations.

The petition requesting modification lists several violations including a failed drug

test, failure to appear at a scheduled meeting with his probation officer, and the

charged assault. In addition, it required the condition that Poindexter “shall not

use, possess, or purchase alcohol” and stated that “these additional supervised

release conditions will aid Mr. Poindexter’s rehabilitation due to his long history

of drug and alcohol abuse and a large criminal history.” The District Court

adopted this reasoning when it granted the petition by order without further

explanation.

       The record indeed demonstrates that the Court revoked Poindexter’s

supervised release based on other violations. The petition for revocation lists

numerous conditions to Poindexter’s supervised release that were violated

including: illegal possession of a controlled substance, use of a controlled

substance and failure to submit urine samples, submission of monthly reports to

the probation officer, failure to abide by the restriction against association with


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convicted felons, failure to truthfully answer inquiries by the probation officer,

and commission of a federal, state, or local crime. The District Court reasoned

during the revocation hearing that, “[w]e still have a very long criminal record

here and a series of supervised release violations after being released from a long-

term prison [sic], so its not good and I have to impose a penalty because of it.”

Clearly, the modification and revocation petitions referenced the assault charge;

however, the reasoning for both the modification and revocation are based on the

numerous other violations and failed to offend due process as Poindexter has

alleged.

       We will affirm.




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