                                                                NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT
                              ________________

                                     No. 16-3917
                                  ________________

                          UNITED STATES OF AMERICA

                                          v.

                                 JAMAAL L. MIKE,
                                             Appellant
                                 ________________

                          On Appeal from the District Court
                                   of the Virgin Islands
                        (D.C. Criminal No. 3-09-cr-00036-001)
                         District Judge: Hon. Curtis V. Gomez

                                  ________________

                              Argued: December 14, 2017

         Before: SMITH, Chief Judge, MCKEE, and SCIRICA, Circuit Judges

                              (Filed: November 27, 2018)

Brendan A. Hurson, Esq. [ARGUED]
Kia D. Sears, Esq.
Office of Federal Public Defender
1336 Beltjen Road
Suite 202, Tunick Building
St. Thomas, VI 00802

Omodare B. Jupiter, Esq.
Office of the Federal Public Defender
4094 Diamond Ruby
Suite 5
Christiansted, VI 00820

      Counsel for Appellant
Meredith J. Edwards, Esq. [ARGUED]
David W. White, Esq.
Office of United States Attorney
5500 Veterans Drive, Suite 260
United States Courthouse
St. Thomas, VI 00802

       Counsel for Appellee

                                    ________________

                                        OPINION*
                                    ________________

SCIRICA, Circuit Judge

       While on supervised release for a firearms conviction, Jamaal Mike shot an

acquaintance. The District Court revoked his supervision and imposed a term of 18

months’ imprisonment. Mike appeals, contending: the District Court (1) did not have

jurisdiction under the delayed revocation provision, see 18 U.S.C. § 3583(i), to revoke his

supervised release after the term had expired; (2) violated his due process rights; (3) ruled

based on insufficient evidence; and, (4) erroneously concluded attempted murder and

assault with a deadly weapon under Virgin Islands law qualify as “crimes of violence.”

Because we conclude the District Court had jurisdiction and did not err, we will affirm.

                                             I.

       Mike was convicted of receipt of a firearm outside the state of residency on

January 29, 2010. He was sentenced to 51 months’ imprisonment and a three-year term

of supervised release that was set to expire on June 23, 2016. On May 23, 2016, while he

*
 This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.

                                             2
was still on supervised release, Mike was arrested by Virgin Islands Police for attempted

murder, assault, unauthorized possession of a firearm during the commission of a crime

of violence, and unauthorized possession of a firearm. Those charges related to an

altercation between Mike and Kadeem Barnes, during which Mike allegedly shot Barnes.

Shortly after the shooting, Barnes repeatedly identified Mike as the shooter to a Virgin

Islands police officer.

       A probation officer filed an unsworn memorandum with the District Court, which

stated Barnes identified Mike as the man who shot him and noted Mike faced five

charges. Probation attached an arrest warrant from the Superior Court of the Virgin

Islands and an arrest “report” from the Virgin Islands Police Department, documenting

Mike’s arrest.

       Based on the submission, the District Court signed an arrest warrant for Mike,

stating he violated the condition that “[d]efendant shall not possess a firearm.” App. 76.

Mike appeared before a Magistrate Judge for an initial appearance and was informed of

the alleged violation. On June 24, 2016, after the expiration of Mike’s term of supervised

release, the probation officer filed a second memorandum with the court, alleging Mike

committed two “A” grade violations: commission of a “Federal, State, or Local crime,”

and possession of a “firearm.” App. 77–78. Mike appeared before a Magistrate Judge,

who concluded probable cause existed to find Mike violated those two conditions.

       Mike and the government then appeared before the District Court on August 18

for a revocation hearing, during which the government stated it was not pursuing the

Grade A violations and moved to have probation amend the violations to include two


                                             3
Grade C violations. The government also stated it would not call Barnes as a witness.

Almost a week later, probation amended the second memorandum to include the Grade C

violations, and the District Court granted the amendment nunc pro tunc to the August 18

revocation hearing.

       During Mike’s scheduled September 14th revocation hearing, the District Court

announced that, despite the government’s position, Mike faced four violations including

the original two Grade A violations. The revocation hearing was continued to provide

Mike adequate notice of the violations. During the final revocation hearing

approximately one month later, the Virgin Islands police officer who investigated the

shooting testified Barnes identified Mike as the shooter. Barnes refused to identify Mike

as the perpetrator but did testify he saw Mike at the store on the day of the shooting.

       The District Court determined, by a preponderance of the evidence, that Mike shot

Barnes and concluded Mike violated a federal, state, or local law, possessed a firearm,

and failed to advise probation within 72 hours of his questioning or arrest. The District

Court imposed a sentence of 18 months’ imprisonment and 400 hours of community

service. Mike appealed.

                                            II.1

       Mike challenges the revocation of his supervised release on four grounds. We

consider each in turn.

                                             A.

1
      The District Court’s jurisdiction is contested but would arise under 48 U.S.C.
§ 1612, 18 U.S.C. § 3583, and 18 U.S.C. § 3231. We have jurisdiction under 28 U.S.C.
§ 1291 and 18 U.S.C. § 3742(a)(1) and (a)(2).

                                             4
       Mike raises two issues concerning the District Court’s jurisdiction under 18 U.S.C.

§ 3583(i). We review the District Court’s exercise of jurisdiction de novo. See United

States v. Merlino, 785 F.3d 79, 82 (3d Cir. 2015). Under section 3583(i), a court’s

jurisdiction over supervised release violations extends beyond the term of supervised

release if certain statutory requirements are met:

       The power of the court to revoke a term of supervised release for violation
       of a condition of supervised release . . . extends beyond the expiration of
       the term of supervised release for any period reasonably necessary for the
       adjudication of matters arising before its expiration if, before its expiration,
       a warrant or summons has been issued on the basis of an allegation of such
       a violation.

18 U.S.C. § 3583(i). Mike first contends the arrest warrant, issued before the expiration

of his supervised release term, did not trigger extended jurisdiction under section 3583(i)

because it was not supported by oath or affirmation. Second, he asserts the violations

were improperly amended after the expiration of his supervised release term.

       As to the oath or affirmation requirement, we need not decide whether an arrest

warrant needs to be supported by oath or affirmation to trigger extended jurisdiction

under section 3583(i).2 The federal arrest warrant was issued based on the first

revocation petition, which incorporated the Virgin Islands arrest warrant and the affidavit



2
       The United States Courts of Appeals for the First, Fifth, and Eighth Circuits have
held a warrant for arrest of an individual on supervised release does not require support
by oath or affirmation. See United States v. Collazo-Castro, 660 F.3d 516, 522 (1st Cir.
2011); United States v. Garcia-Avalino, 444 F.3d 444, 447–48 (5th Cir. 2006); United
States v. Hacker, 450 F.3d 808, 816 (8th Cir. 2006); see also United States v. Madden,
515 F.3d 601, 608 (6th Cir. 2008) (holding that it was not plain error where a warrant for
violation of supervised release was based on an unsworn information). In contrast, the
Ninth Circuit requires that a warrant for section 3583(i) be supported by oath or
affirmation. United States v. Vargas-Amaya, 389 F.3d 901, 907 (9th Cir. 2004).

                                              5
that supported the arrest warrant. The supporting affidavit was sworn to by a detective

employed by the Virgin Islands Police Department. Because the packet included an

affidavit in this case, the warrant validly triggered extended jurisdiction.

       Having concluded the warrant was sufficient to extend jurisdiction, we must now

decide whether the District Court allowed improper amendment of the violations after

expiration of Mike’s supervised release.3 It did not.

       The Second Circuit addressed the issue of whether a court’s revocation authority is

limited to the violation alleged prior to the expiration of supervised release in United

States v. Edwards, 834 F.3d 180 (2d Cir. 2016), and concluded it was not. See id. at 193

(exercising de novo review). In Edwards, the defendant argued that “such a violation” in

section 3583(i) was ambiguous because it could be interpreted as referring back to the

first clause and requiring the charged violation and the proved violation be the same. Id.

Rejecting that reading of the statute, the Second Circuit concluded the clause was not

ambiguous because Congress “would have referred simply to ‘such violation,’ without

use of the indefinite article, ‘a,’ which generally implies the possibility of a larger number

than one.” See id. Instead, the Second Circuit determined the phrase referred to a type of

violation, i.e., a violation of a condition of supervised release. See id. Although it

expressly declined to decide the outermost extent of this jurisdiction, it held that the

statute allowed district courts to revoke supervised release on the basis of violations when

“those violations involve conduct related to the violation charged in the timely warrant,



3
       We have held section 3583(i) is jurisdictional and accordingly not subject to
equitable tolling. See Merlino, 785 F.3d at 86.

                                              6
which conduct was disclosed to the defendant so as to afford adequate notice and

opportunity to be heard.” Id. at 194.4

       We find the Second Circuit’s reasoning persuasive and need not address the

outermost extent of jurisdiction. An arrest warrant was issued in this case prior to the

supervised release term’s expiration based on a petition that stated the alleged violation

as “[d]efendant shall not possess a firearm.” App. 76. All of the subsequently added

violations relate to the same incident—Barnes’s shooting. Mike had adequate notice and

an opportunity to be heard on the amended violations. Accordingly, the amendment in

this case was not improper.5

                                             B.

       Mike contends the District Court violated his due process rights during the

4
       The Fifth and Eleventh Circuits have similarly construed section 3583(i) to
provide jurisdiction over violations of supervised release, even if those violations were
not included in a timely warrant. The Fifth Circuit construed the inclusion of the
indefinite article “a” as meaning that any violation committed during the term of
supervised release can be added as long as a warrant or summons alleging a violation is
timely filed. See United States v. Naranjo, 259 F.3d 379, 382–83 (5th Cir. 2001). The
Fifth Circuit rejected the argument that an amended petition for violation is similar to a
superseding indictment, which can only be considered timely if it does not broaden the
charges, stating that section 3583(i) expressly extends the court’s jurisdiction, while the
return of a timely indictment merely tolls the statute of limitations as to those charges
included in the indictment. See id. at 383. The Eleventh Circuit also determined that,
once a defendant is before a court, “it ha[s] the power to consider any violation of the
terms of the release and base a revocation on it.” United States v. Presley, 487 F.3d
1346, 1349 (11th Cir. 2007).
5
        Mike contends the original violation was dismissed before the arrest warrant was
issued and thus could not be amended. But, after review of the record, we conclude the
original violations were not dismissed, and the District Court had the authority to proceed
on all of the violations before it. Cf. United States v. Mejia-Sanchez, 172 F.3d 1172,
1175 (9th Cir. 1999) (“As a result of [the relationship between the district court and
defendant], a district court may sua sponte initiate revocation proceedings whenever it
obtains information that a defendant has violated a condition of his release.”).

                                              7
revocation hearing by questioning witnesses and denying him the right to introduce

Barnes’s medical records. We review due process claims de novo. United States v.

Barnhart, 980 F.2d 219, 222 (3d Cir. 1992). We conclude those actions did not violate

Mike’s due process rights.

       In the somewhat analogous trial context, district courts may question witnesses but

must not assume an advocacy role. See United States v. Adedoyin, 369 F.3d 337, 342 (3d

Cir. 2004). Barnes was a largely uncooperative and reluctant witness. Although the

District Court did take a slightly more active role, much of the questioning was aimed at

having Barnes share additional details he would not provide under questioning by the

government. The District Court did not assume the role of an advocate in its questioning.

       We also conclude the District Court did not abuse its discretion in denying Mike

the right to introduce Barnes’s medical records. “[A]n individual’s privacy interest in

medical records must be balanced against the legitimate interest of others in obtaining

disclosure.” United States v. Polan, 970 F.2d 1280, 1285 (3d Cir. 1992). In Polan, we

held requiring the prosecutor to disclose a witness’s psychiatric records to the defense

would be duplicative where the witness’s psychiatric problems were explored effectively

during cross-examination. See id.

       In this case, the investigatory officer testified during the revocation proceeding

that she knew Barnes had some mental condition and that she “used to see him talking to

himself and walking around.” App. 340. The officer testified Barnes’s mother told her




                                             8
he has schizophrenia and was not taking his medication at the time of the shooting.6

Because Barnes’s mental health was already established as part of the investigatory

officer’s testimony, introduction of his medical records would have been duplicative.

                                                C.

      Mike challenges the sufficiency of the evidence against him. We review the

decision to revoke supervised release for abuse of discretion. United States v. Maloney,

513 F.3d 350, 354 (3d Cir. 2008). The District Court’s factual findings are reviewed for

clear error. United States v. Poelintz, 372 F.3d 562, 565–66 & n.6 (3d Cir. 2004).

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

See 18 U.S.C. § 3583(e). The District Court heard testimony that Barnes identified Mike

as the shooter while in the hospital, wrote Mike’s name down as the shooter, and

identified his picture from an array. Additionally, surveillance video showed Mike in the

store a few minutes before the shooting. The District Court weighed this evidence

against (1) a statement by a witness of the shooting—who did not testify—that provided a

description of the shooter inconsistent with Mike’s appearance and (2) Barnes’s conduct

during the hearing. Based on our review of the record, we conclude the District Court did

not abuse its discretion when it found the violation proven by a preponderance of the

evidence.

                                           D.

      Finally, Mike contends the District Court erred when it concluded assault with a



6
  These statements were introduced as part of Mike’s cross-examination of the
investigatory officer, for the purpose of discrediting Barnes as a witness.

                                            9
deadly weapon or attempted murder under the Virgin Islands Code qualified as crimes of

violence and accordingly determined either one constituted a Grade A violation. “We

review a District Court’s interpretation of the Sentencing Guidelines de novo and its

application of the Guidelines to the facts for clear error.” United States v. Woronowicz,

744 F.3d 848, 850 (3d Cir. 2014).

       Under the Sentencing Guidelines, Grade A violations include “conduct

constituting . . . a federal, state, or local offense punishable by a term of imprisonment

exceeding one year that . . . is a crime of violence.” U.S.S.G. § 7B1.1(a)(1). “Crime of

violence” is defined in section 4B1.2. Id. cmt. 2. In turn, “crime of violence” is defined,

in relevant part, as “any offense under federal or state law, punishable by imprisonment

for a term exceeding one year that . . . has as an element the use, attempted use, or

threatened use of physical force against the person of another.” Id. § 4B1.2(a)(1).

       Mike’s argument assumes the categorical approach, which involves the evaluation

of elements of the generic offense without regard to actual conduct, applies. But in the

revocation context, “the categorical approach does not apply, and district courts may

consider a defendant’s actual conduct.” United States v. Carter, 730 F.3d 187, 192 (3d

Cir. 2013). Thus, “the grade of the violation is to be based on the defendant’s actual

conduct.” Id. (quotation marks omitted) (quoting U.S.S.G. § 7B1.1 cmt. n.1); see also

United States v. Golden, 843 F.3d 1162, 1167 (7th Cir. 2016); United States v. McNeil,

415 F.3d 273, 278 (2d Cir. 2005). But see United States v. Willis, 795 F.3d 986, 992 (9th

Cir. 2015) (applying the categorical approach).

       Turning to Mike’s actual conduct, the District Court found by a preponderance of


                                             10
the evidence that Mike shot Barnes three times. Based on that finding, the District Court

concluded Mike’s conduct qualified as assault with a deadly weapon or attempted

murder, which was charged, and that both offenses qualified as Grade A violations. 7 We

agree.

                                             IV.

         For the foregoing reasons, we will affirm the revocation of supervised release and

sentence.




7
        Even if we engaged in the requested analysis, we would reach the same
conclusion. We previously held murder “is generically defined as causing the death of
another person either intentionally, during the commission of a dangerous felony, or
through conduct evincing reckless and depraved indifference to serious dangers posed to
human life.” United States v. Marrero, 743 F.3d 389, 401 (3d Cir. 2014). We also held
that Pennsylvania’s murder statute, which defined third-degree murder as “an unlawful
killing with malice but without specific intent to kill,” substantially corresponded to the
third prong of that generic definition. Id. at 401 (quoting Commonwealth v. Dunphy, 20
A.3d 1215, 1291 (Pa. Super. Ct. 2011)). Like Pennsylvania’s statute, the Virgin Islands
Code defines murder as “the unlawful killing of a human being with malice
aforethought.” 14 V.I. Code Ann. § 921.
       Under the Guidelines, an attempt to commit a crime of violence is itself a crime of
violence. U.S.S.G. § 4B1.2, cmt. 1. And like the generic definition of attempt, which
requires “an act or omission constituting a substantial step in a course of conduct planned
to culminate in his commission of the crime,” Model Penal Code § 5.01(1)(c), the
standard for determining attempt liability, under Virgin Islands law, has been defined “to
require proof that the perpetrator took a substantial step toward completion of the
underlying crime,” Motta v. Virgin Islands, 2004 U.S. Dist. LEXIS 25112, at *6 (D.V.I.
2004) (collecting cases). Thus, even employing a relaxed categorical approach,
attempted murder under the Virgin Islands Code qualifies as a Grade A violation. This
conclusion holds true under both the 2015 and 2016 versions of the Sentencing
Guidelines. See Marrero, 743 F.3d at 399 (“[W]e reaffirm that offenses listed in
Application Note 1 are ‘enumerated’ for purposes of the crime-of-violence analysis.”).

                                             11
