                                                                           F I L E D
                                                                    United States Court of Appeals
                                                                            Tenth Circuit
                     UNITED STATES CO URT O F APPEALS
                                                                         February 2, 2007
                                  TENTH CIRCUIT                         Elisabeth A. Shumaker
                                                                            Clerk of Court


 U N ITED STA TES O F A M ER ICA,

               Plaintiff-Appellee,                          No. 05-6113
          v.                                              (W .D. Oklahoma)
 TIM OTH Y D EM ETRIUS STON E,                        (D.C. No. CR-04-157-T)
 a/k/a M IC HA EL LA N D O N
 ALEXAN DER,

               Defendant-Appellant.




                             OR D ER AND JUDGM ENT *


Before BR ISC OE, M cKA Y, and SEYM OUR, Circuit Judges.




      After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist the determination of

this appeal. See F ED . R. A PP . P. 34(a)(2); 10 TH C IR . R. 34.1(G). The case is

therefore ordered submitted without oral argument.




      *
        This order and judgment is not binding precedent, except under the doctrines of
law of the case, res judicata, and collateral estoppel. It may be cited, however, for its
persuasive value consistent with Fed. R. App. P. 32.1 (eff. Dec. 1, 2006) and 10th
Cir. R. 32.1 (eff. Jan. 1, 2007).
      M ichael Landon Alexander appeals the district court’s revocation of his

supervised release, contending that revocation of supervised release without the

benefit of a jury trial is unconstitutional in the wake of United States v. Booker,

543 U.S. 220 (2005). He also challenges the constitutionality of his re-

imprisonment after the revocation. W e affirm.

      On April 26, 1991, M r. Alexander was convicted for possession with intent

to distribute cocaine base, in violation of 21 U.S.C. § 841(a)(1). The District

Court of the Central District of California sentenced him to 151 months

imprisonment, to be followed by five years of supervised release. After M r.

Alexander served the term of imprisonment and while he was serving the term of

supervised release, jurisdiction of the case was transferred from the Central

District of California to the W estern District of Oklahoma. At that time, M r.

Alexander w as in state custody awaiting trial on new charges.

      On September 4, 2004, the United State Probation Office filed a Petition

for W arrant of Summons For Offender U nder Supervision, alleging that M r.

Alexander violated the terms of his supervised release. Specifically, the warrant

asserted he (1) committed burglary, kidnaping and domestic assault involving his

then-girlfriend, (2) failed to report to the Probation Officer, (3) failed to notify

the Probation Officer of his arrest, and (4) failed to report for a drug test.

      M r. Alexander remained in state custody on state charges until M arch 7,

2005, at which time the state charges against him were dismissed because the

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complaining witness could not be located. On M arch 10, 2005, a Second

Amended Petition for W arrant of Summons for Offender Supervision was filed,

alleging the same violations. The Second Amended Petition included another

violation, that of a conviction for driving while impaired. M r. Anderson moved

to dismiss this petition and raised his Booker-related claims. On M arch 24, the

district court held a final revocation hearing at which it rejected M r. Alexander’s

Booker challenge, revoked his supervised release, and ordered him to be

imprisoned for a term of thirty months, with credit for the time he spent in state

custody for the same conduct alleged in the petition.

      On appeal, M r. Alexander contends the district court’s revocation of his

supervised release required him to return to prison without a jury having found

the facts necessary for the revocation, i.e. whether he violated the rules of his

release. He claims the absence of jury findings constitutes a violation of his Sixth

Amendment rights under Booker.

      W e settled this issue in United States v. Cordova, 461 F.3d 1184, 1186

(10th Cir. 2006), where we said “[i]t is well-settled that supervised release is part

of the penalty for the initial offense, and that once the original sentence has been

imposed in a criminal case, further proceedings with respect to that sentence have

not been subject to Sixth Amendment protections.” (internal citation and

quotations omitted). This is so because




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      [w]hen revoking supervised release the district judge is not
      resentencing the defendant. The type and the term of the sentence
      has already been determined by the sentencing judge. The
      supervising district judge is bound by the sentence previously
      imposed, and at revocation is merely converting all or a portion of
      the supervised release period into a term of imprisonment.

United States v. Tsosie, 376 F.3d 1210, 1216 (10th Cir. 2004).

      In finding no Sixth Amendment violation in Cordova, we adopted the

Second Circuit’s reasoning:

      [I]t is evident that the constitutional rights afforded a defendant
      subject to revocation of supervised release for violation of its
      conditions are not co-extensive with those enjoyed by a suspect to
      whom the presumption of innocence attaches. Given a prior
      conviction and the proper imposition of conditions on the term of
      supervised release, when a defendant fails to abide by those
      conditions the government is not then put to the burden of an
      adversarial criminal trial. Instead, there is, as in this case, a
      revocation of release hearing at which, as the Supreme Court
      instructs, neither the right to a jury trial, nor proof beyond a
      reasonable doubt is required. As the Supreme Court has explained in
      the context of parole, such proceedings arise[ ] after the end of the
      criminal prosecution, including imposition of sentenceAAAA Revocation
      deprives an individual, not of the absolute liberty to w hich every
      citizen is entitled, but only of the conditional liberty properly
      dependent on observance of special parole restrictions.

      ....

             There is no reason why the conditions of supervised release,
      which uncontroversially deprive the convicted of substantive
      constitutional rights, cannot also deprive the defendant of certain
      procedural constitutional rights for a specified term and under
      specific circumstances. In other words, it is of no constitutional
      concern that the conditions placed on a defendant's liberty in
      supervised release encompass by implication the additional condition
      expressed in § 3583(e)(3): that the defendant surrender his rights to



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      trial by jury and to having accusations against him proved beyond a
      reasonable doubt.

Id. 461 F.3d at 1188 (internal citations and quotations omitted).

      In sum, M r. Alexander’s Sixth Amendment right to a jury trial was not

violated when his supervised release was revoked based on facts found by the

district court by a preponderance of the evidence. W e AFFIRM the district

court’s decision to revoke M r. Alexander’s supervised release and to order an

additional term of imprisonment.

                                               ENTERED FOR THE COURT


                                               Stephanie K. Seymour
                                               Circuit Judge




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