     Case: 11-40841     Document: 00511819199         Page: 1     Date Filed: 04/12/2012




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                                            FILED
                                                                           April 12, 2012
                                     No. 11-40841
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee

v.

ROGER WARREN JONES,

                                                  Defendant-Appellant


                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 2:01-CR-274-1


Before GARZA, SOUTHWICK, and HAYNES, Circuit Judges.
PER CURIAM:*
        Roger Warren Jones appeals the district court’s revocation of his
supervised release. Jones argues that the district court’s failure to ascertain
whether his plea of true to the alleged supervise release violations was knowing
and voluntary violated his due process rights. Jones acknowledges that this
court has not decided whether Boykin v. Alabama, 395 U.S. 238 (1969), extends
to revocation hearings.          He argues, however, that the “totality of the
circumstances” demonstrates that the plea was not knowing and voluntary and,

       *
         Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
   Case: 11-40841      Document: 00511819199         Page: 2     Date Filed: 04/12/2012

                                      No. 11-40841

as a result, the district court plainly erred by failing to ascertain whether the
plea was knowing and voluntary.
       This court has not addressed whether the protections afforded by Boykin
is applicable to revocation hearings. See United States v. Johns, 625 F.2d 1175,
1176 (5th Cir. 1980)(declining to address Boykin’s applicability to probation
revocation proceedings); see also United States v. Pelensky, 129 F.3d 63, 68 (3d
Cir. 1997)(collecting cases).       Nor has this court applied a “totality of the
circumstances” test in the context of evaluating the knowing and voluntary
nature of a plea at a revocation hearing. Cf. United States v. Hodges, 460 F.3d
646, 652 (5th Cir. 2006) (applying “totality of the circumstances” test to question
of whether waiver of counsel in a revocation proceeding was knowing and
voluntary). Given the lack of controlling authority on this issue, any error by the
district court with regard to failing to ascertain the knowing and voluntary
nature of the plea was not clear or obvious and, therefore, does not meet the
plain error standard. See United States v. Dupre, 117 F.3d 810, 817 (5th Cir.
1997); see also United States v. Gordon, 87 F. App’x 384 (5th Cir.
2004)(unpublished)(noting that plain error could not be shown when this court
has not applied Boykin to voluntariness of plea in a supervised release
revocation proceeding). Moreover, we note that the record of the revocation
hearing, during which Jones allocuted at some length and admitted his guilt in
his own words,1 reveals no indication of any coercion, incompetence, or
dissatisfaction with counsel.          The district court’s judgment is therefore
AFFIRMED.




       1
           Neither Jones during his allocution, nor his counsel who addressed the court,
referenced any of the allegations made in an earlier-filed pro se motion to dismiss which, by
that time, had been stricken by the district court because Jones was represented by counsel.

                                             2
