                    United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                   ___________

                                   No. 07-2443
                                   ___________

United States of America,              *
                                       *
            Plaintiff - Appellee,      *
                                       * Appeal from the United States
      v.                               * District Court for the
                                       * District of North Dakota.
Daniel P. Azure,                       *
                                       *
            Defendant -Appellant.      *
                                  ___________

                             Submitted: February 14, 2008
                                Filed: August 27, 2008
                                 ___________

Before MELLOY, GRUENDER, and SHEPHERD, Circuit Judges.
                          ___________

SHEPHERD, Circuit Judge.

       Daniel P. Azure appeals his supervised release revocation and the imposition
of a 24-month sentence. Azure raises a number of challenges to the district court’s1
decision, asserting that it should be vacated and his case remanded for further
proceedings. We affirm the judgment of the district court.




      1
       The Honorable Ralph R. Erickson, United States District Judge for the District
of North Dakota, adopting the Report and Recommendation of the Honorable Alice
R. Senechal, United States Magistrate Judge for the District of North Dakota.
                                           I.

      Azure pled guilty to assault on a federal officer in violation of 18 U.S.C. §
111(a)(1), (b), and was sentenced to six months imprisonment and two years of
supervised release on October 14, 2004. With credit for time served, Azure began his
supervised release that day. However, Azure immediately went into state custody
because of an outstanding warrant. Azure was released from state custody on
November 4, 2004. Prior to the petition at issue in this appeal, three petitions for
revocation of Azure’s supervised release were filed. The first petition was filed
December 12, 2004; Azure admitted the violations alleged. As a result, Azure was
ordered to reside at Spirit Lake Wiconi and to complete chemical dependency
treatment. Azure remained at Wiconi until February 18, 2005.

       Due to Azure’s failure to contact the supervising probation officer after he left
Wiconi, a second revocation petition was filed on March 7, 2005. Azure was arrested
on the second petition on March 16, 2005. Azure admitted the violations. Accepting
the magistrate judge’s recommendation, the district court ordered Azure’s placement
for six months in the Lake Region Law Enforcement Center (“Center”) and directed
Azure to complete chemical dependency treatment. After Azure failed to return to the
Center on time from a short-term leave pass, a third petition was filed on June 28,
2005. Azure admitted the violation and was sentenced to 120 days incarceration with
18 months of continued supervised release thereafter; he served his time and began
the second term of supervised release on September 9, 2005.

      On September 11, 2005, Azure was arrested by the Fort Totten Tribal Police on
an outstanding domestic violence warrant and for public intoxication. On September
26, 2005, the Fort Totten police informed Azure’s probation officer that he had been
sentenced to 15 days in jail for a prior domestic assault. Azure was to complete this
sentence on October 9, 2005 and be extradited to state authorities for a robbery alleged



                                          -2-
to have occurred on September 18, 2005. On December 31, 2005, Azure was again
arrested for public intoxication.

       Azure was found guilty of the state robbery charge on June 6, 2006 and
sentenced to three years imprisonment, with two years suspended, and two years of
state supervised release. While Azure was serving his state sentence, the fourth
revocation petition was filed on January 23, 2007. The fourth petition alleged that
Azure had been (1) arrested on December 31, 2005 by the Fort Totten police for
public intoxication and (2) convicted on June 6, 2006 of robbery in state court. On
March 21, 2007, Azure was released from state custody but went into federal custody
on a probation warrant issued in support of the fourth revocation petition.

       The magistrate judge conducted a revocation hearing on April 9, 2007. At the
hearing, the magistrate judge stated, “[The district court has] asked that I conduct the
hearing and [that] I prepare a written report and recommendation.” The magistrate
judge’s report and recommendation states that “[t]he petition was referred to this
Court for hearing, and for preparation of this Report and Recommendation.”
However, there is no order of referral from the district court in the record presented
to us on appeal. The magistrate judge filed a report and recommendation that Azure’s
supervised release be revoked and he be sentenced to 24 months of imprisonment.
Azure filed objections.

      Without further hearing, the district court adopted the magistrate judge’s report
and recommendation. In its order, the district court does not expressly address the
means by which the magistrate judge learned that it was to conduct Azure’s hearing
and submit a report and recommendation to the district court, stating only that
“[b]efore this Court is the report and recommendation of [the] Magistrate Judge . . . .”
The district court sentenced Azure to 24 months in prison on May 21, 2007. The
Judgment for Revocation was filed on June 7, 2007. Azure brings this appeal.



                                          -3-
                                          II.

       Azure contends that the judgment of the district court should be vacated and the
case remanded because: (1) the magistrate judge lacked jurisdiction to conduct the
revocation hearing; (2) the district court failed to undertake the requisite de novo
review of the entire record; (3) Azure was not present at the time the district court
adopted the magistrate judge’s report and sentenced him; and (4) his sentence was
unconstitutionally imposed to punish him for the offense underlying his revocation,
rather than for his original offense. We address each in turn.

                                         III.

                                          A.

       Azure contends, for the first time on appeal, that another revocation hearing
must be held because the magistrate judge lacked jurisdiction to conduct the hearing.
The government also frames the issue as jurisdictional.2 “A district judge may
designate a magistrate judge to conduct hearings to modify, revoke, or terminate
supervised release, including evidentiary hearings, and to submit to the judge
proposed findings of fact and recommendations . . . .” 18 U.S.C. § 3401(i). Azure
contends that section 3401(i) was not complied with in this case because the district
court did not properly designate the magistrate judge to conduct Azure’s revocation
hearing to the magistrate judge.

      Here, there is nothing in the docket report that shows that the district court
designated the magistrate judge to conduct Azure’s revocation hearing or any
description of a formal procedural mechanism by which the magistrate judge learned

      2
       Azure contends that the magistrate judge lacked jurisdiction under 18 U.S.C.
§ 3401(i) and 28 U.S.C. § 636. The government does not contend that the magistrate
judge had jurisdiction under section 636, so we focus solely on section 3401(i).

                                          -4-
that she was tasked with the duty of conducting the revocation hearing. See Fed. R.
Crim. P. 55 (“The clerk [of the district court] must enter in the records every court
order . . . and the date of entry.”). Neither is such a “designation” otherwise contained
in the written record. At issue, therefore, is whether the magistrate judge’s statement,
on the record, that the district court requested that she conduct the revocation hearing
satisfies section 3401(i)’s mandate that the district judge “designate [the] magistrate
judge . . . .” See 18 U.S.C. § 3401(i).

       Azure urges us to adopt the Ninth Circuit’s rule that designation pursuant to
section 3401(i) requires a written order from the district court, see United States v.
Sanchez-Sanchez, 333 F.3d 1065, 1069 (9th Cir. 2003), while the government
contends that no such order is required and that the magistrate judge’s record
statement was sufficient. We reject the government’s approach because designation
at least requires some indication in the record from the district court that designation
occurred. Because this lesser standard is fatal to the magistrate judge’s exercise of
authority in this case, we need not adopt a rule requiring a written order of referral
from the district court for designation.3

       However, this determination does not end our inquiry. We must now consider
whether the lack of a proper designation from the district court pursuant to section
3401(i) constitutes jurisdictional error, an issue of first impression in this circuit. We
review this question de novo. United States v. Bolivar-Munoz, 313 F.3d 253, 256 (5th
Cir. 2002). As previously stated, the parties address this issue as an inquiry into the
magistrate judge’s jurisdiction. However, precedent from the First and Fifth Circuits
persuades us that the lack of a proper designation under section 3401(i) is not a
jurisdictional error but a procedural error.


      3
        Even so, we see no reason why this would not be the procedure followed by
district courts designating magistrate judges under section 3401(i) in order to avoid
controversies such as in this case.

                                           -5-
       In United States v. Lopez-Pena, 912 F.2d 1542 (1st Cir. 1989), the defendants
objected to the empanelment of a felony jury by a magistrate judge rather than a
district judge. Id. at 1544. Though the First Circuit acknowledged that this was error,
it held that the right to have an Article III judge preside at empanelment of a felony
jury could be waived. Id. at 1547-48. In so holding, the First Circuit explained,

      Movants do not contend that the magistrate lacked jurisdiction in the
      sense that the district court lost, or was deprived of, subject matter
      jurisdiction, thus eclipsing the raise-or-waive rule. See, e.g., Louisville
      & Nashville R. Co. v. Mottley, 211 U.S. 149, 152 (1908); Capron v. Van
      Noorden, 6 U.S. 126, 2 Cranch 126, 127 (1804). The eschewal is
      prudent. The district court indisputably possessed subject matter
      jurisdiction throughout, but the magistrate lacked statutory authority to
      exercise that jurisdiction. The resultant irregularity was procedural, not
      jurisdictional. See Archie v. Christian, 808 F.2d 1132, 1134-35 (5th Cir.
      1987) (en banc).

Id. at 1547 n.6. Accordingly, the lack of proper designation under section 3401(i) in
this case was a procedural error because the district court retained subject matter
jurisdiction, even as the magistrate judge conducted Azure’s revocation hearing.

       In Bolivar-Munoz, the Fifth Circuit applied 28 U.S.C. § 636(b)(3),4 which like
section 3401(i), does not involve “magistrate judges . . . enter[ing] judgment . . . but
simply fil[ing] . . . reports and recommendations . . . .” 313 F.3d at 255. There, the
district court did not formally refer the matters to the magistrate judges until after the
magistrate judges conducted the defendants’ plea hearings, accepted their guilty pleas,
and issued reports and recommendations. Id. at 254-55. Then, the district court
adopted the magistrate judges’ reports and recommendations, accepted pleas, and
sentenced defendants. Id. For the first time on appeal to the Fifth Circuit, the

      4
       “A magistrate judge may be assigned such additional duties as are not
inconsistent with the Constitution and laws of the United States.” 28 U.S.C.
§ 636(b)(3).

                                           -6-
defendants challenged the magistrate judges’ authority to conduct their respective
guilty plea hearings, citing the lack of formal referral orders at the time the magistrate
judges conduct their plea hearings. Id. at 254. The Fifth Circuit agreed that it was
error for the magistrate judges to do so when “the district judge had not entered a
proper referral order” but went on to consider whether, pursuant to section 636(b)(3),
this was a jurisdictional or procedural error. Id. at 256.

       In making this determination, the Fifth Circuit observed, “[W]hen a district
judge enters a judgment, defects in the order of referral are procedural matters that can
be waived if not properly preserved” because “the duty assigned to a magistrate judge
is ‘subject to meaningful review’ by a district judge.” Id. However, “when a
magistrate judge enters judgment . . . , the lack of a proper designation by the district
judge renders the magistrate judge without jurisdiction.” Id. at 257 n.3. The Fifth
Circuit found that “the magistrate judges’ actions were subject to meaningful review
by the district judge” in that “[a] magistrate judge’s taking of a guilty plea does not
bind the district judge” and “the district judge reviews guilty plea proceedings de
novo.” Id. at 257. Accordingly, the Fifth Circuit determined that the lack of proper
referrals was a procedural defect and that the defendants waived the right to raise the
issue “[b]y failing to object to the magistrate judges’ actions . . . .” Id.

       The Fifth Circuit’s rationale in Bolivar-Munoz applies equally to section
3401(i). Neither party contests that, in the context of section 3401(i), the district court
must undertake de novo review. Section 3401(i) does not specify the standard of
review that a district court is to apply to a magistrate judge’s findings of fact and
recommendations, and we have not previously addressed this issue. However, the
Sixth Circuit has stated that section 3401(i) empowers magistrate judges to conduct
final revocation hearings, subject to de novo review by the district judge. See United
States v. Waters, 158 F.3d 933, 938 (6th Cir. 1998).




                                            -7-
       Furthermore, section 3401(i)’s legislative history provides that we should
utilize the procedures in place in the context of 28 U.S.C. § 636(b)(1)5 or (b)(3). See
H.R. Rep. 102-1006(I), at 18-19 (1992), reprinted in 1992 U.S.C.C.A.N. 3921, 3927-
28. Matters referred to a magistrate judge under both sections 636(b)(1) and 636(b)(3)
must be reviewed de novo by the district court when a party objects to a magistrate
judge’s findings. See Peretz v. United States, 501 U.S. 923, 939 (1991); see also In
re Griego, 64 F.3d 580, 584 n.4 (10th Cir. 1995) (“[D]e novo review is required in
both 636(b)(1) and 636(b)(3) referrals.”). Accordingly, it follows that, upon an
objection to a magistrate judge’s proposed findings and recommendations pursuant
to section 3401(i), a district court must undertake de novo review. See H.R. Rep. 102-
1006(I), at 18-19, reprinted in 1992 U.S.C.C.A.N. 3921, 3927-28; see also Waters,
158 F.3d at 938. Because de novo review constitutes meaningful review, see United
States v. B & D Vending, Inc., 398 F.3d 728, 732-33 (6th Cir. 2004) (“By conducting
a de novo review of the portions of the magistrate judge’s final [report and
recommendation] to which objections were filed, the district court subjected the
magistrate judge’s proposed factual findings and recommendations to meaningful
review . . . .”), the absence of a proper designation pursuant to section 3401(i) is a
procedural error, see Bolivar-Munoz 313 F.3d at 256.

       In sum, lack of proper designation of a magistrate judge pursuant to section
3401(i) to conduct a revocation hearing constitutes procedural error, not jurisdiction
error, because (1) the district court retains jurisdiction throughout the matter, see
Lopez-Pena, 912 F.2d at 1547 n.6, and (2) the magistrate judge’s report and
recommendation is subject to meaningful review, see Bolivar-Munoz 313 F.3d at 256.

      Azure did not challenge the magistrate judge’s authority to conduct the hearing
before the hearing, at the hearing, prior to the magistrate judge’s issuance of the report

      5
       Pursuant to 28 U.S.C. § 636(b)(1), a district court may designate a magistrate
judge to determine a number of pretrial matters and conduct hearings, including
evidentiary hearings. See 28 U.S.C. § 636(b)(1)(A), (B).

                                           -8-
and recommendation, or before the district court entered judgment.6 By failing to
challenge this procedural defect prior to this appeal, Azure waived the right to raise
it as a basis for relief from the district court’s revocation of his supervised release.
See Bolivar-Munoz, 313 F.3d at 257; Lopez-Pena, 912 F.2d at 1549; see also Waters,
158 F.3d at 936 (stating that defendant “apparent[ly] waive[d]” his claim that the
magistrate judge lacked the statutory authority to conduct his revocation hearing
because he “fail[ed] to challenge the Magistrate Judge’s authority before filing his
objections to the report and recommendation”); Hill v. Duriron Co., 656 F.2d 1208,
1213 (6th Cir. 1981) (“Ordinarily a party who objects to a reference to a magistrate
must make his objections known either at the time of reference or soon thereafter.”).

                                           B.

       Azure next asserts that the district court failed to undertake the required de novo
review of the magistrate judge’s report and recommendation because the court did not
indicate that it had reviewed the hearing transcript or listened to the tape recording of
the hearing.7 In the context of section 636(b)(1), we have held that “[i]n conducting
[de novo] review, the district court must, at a minimum, listen to a tape recording or
read a transcript of the evidentiary hearing.” Jones v. Pillow, 47 F.3d 251, 252 (8th
Cir. 1995) (quoting Branch v. Martin, 886 F.2d 1043, 1046 (8th Cir. 1989)). We have
also stated generally that “[w]hen [a] magistrate judge’s report is based upon an
evidentiary hearing, this review requires the district court to, at a minimum, listen to
the tape of the hearing or read the transcript.” United States v. Benitez, 244 F. App’x
64, 66 (8th Cir. 2007). Here, the magistrate judge conducted an evidentiary hearing

      6
       Though the government did not assert that Azure had waived his right to
challenge the magistrate judge’s authority to conduct the revocation hearing, “[t]his
court may affirm the judgment of the district court on any basis supported by the
record.” Moore v. Forrest City Sch. Dist., 524 F.3d 879, 885 (8th Cir. 2008).
      7
       Azure’s revocation hearing was tape recorded. A transcript of the hearing was
not prepared until after Azure filed this appeal.

                                           -9-
on the petition for revocation of Azure’s supervised release. See 18 U.S.C. § 3401(i).
Accordingly, de novo review requires that the district court either listen to the tape of
the hearing or read the hearing transcript. See Benitez, 244 Fed. App’x at 66; see also
Jones, 47 F.3d at 252; Branch, 886 F.2d at 1046.

       As in the context of section 636(b)(1), we presume on appeal that the district
court conducted the requisite de novo review, including review of the hearing
transcript or tape. See United States v. Lothridge, 324 F.3d 599, 600 (8th Cir. 2003);
Jones, 47 F.3d at 253. Azure bears the burden of negating the presumption of de novo
review by providing affirmative evidence to the contrary. Gonzales-Perez v. Harper,
241 F.3d 633, 636 (8th Cir. 2001). We have previously held that the presumption that
the district court conducted a de novo review is overcome where:

      1) the hearing transcript was not available to the district court; 2) the
      district court gave no indication that it had listened to the tape of the
      hearing; and 3) the district court did not state that it had reviewed the file
      and records, but had only indicated review of the findings and rulings
      and the defendant’s objections.

Benitez, 244 F. App’x at 66; see Jones, 47 F.3d at 253.

       The Jones Court remanded the case because the hearing transcript was available
at the time of the district court’s review and the district court stated only that it had
reviewed the magistrate judge’s findings and recommendation and the objections
thereto. 47 F.3d at 253. The Benitez Court stated,

      This case fall[s] squarely within Jones. The transcript was not available
      at the time of the district court’s review, the district court did not state
      that it had listened to the tapes, and the district court did not state that it
      had reviewed the records or files. Under Jones, we cannot presume that
      the district court conducted the necessary review in light of these
      indications to the contrary.


                                           -10-
244 F. App’x at 66. Azure asserts that Jones and Benitez dictate that de novo review
was not had in this case. Therefore, we consider whether this case, like Benitez, “falls
squarely within Jones.” See id.

       Here, Azure has shown the first two elements of Jones and Benitez as the
district court did not have a transcript of the revocation hearing and did not indicate
that he had listened to the tape of the hearing. However, with respect to the final
element, the district court stated that it had “review[ed] . . . the record, pleadings, and
affidavits filed . . . .” Thus, this case is distinguishable from both Jones and Benitez.
Furthermore, Jones and Benitez do not support the broad reading urged by Azure that
where, as here, there is no transcript of the hearing available, the district judge must
affirmatively state on the record that he or she has listened to the recording of the
hearing.8 See Jones, 47 F.3d at 253; Benitez, 244 F. App’x at 66. Accordingly, we
find that Azure has failed to overcome the presumption that de novo review was had.

                                            C.

       Azure also argues that this case must be remanded for resentencing because the
district court sentenced him without giving him the opportunity to allocute. The
government does not contest that Azure possessed a right of allocution; however, it
asserts that Azure waived this issue by failing to raise it in his opening brief. Azure
concedes that he did not raise the allocution issue in his opening brief.

      The right of allocution applies to supervised release revocation proceedings.
United States v. Patterson, 128 F.3d 1259, 1260-61 (8th Cir. 1997) (per curiam); see
United States v. Caffey, 351 F.3d 804, 804-05 (8th Cir. 2003) (per curiam) (reversing
and remanding for resentencing following allocution because the district court failed

      8
       Though not required by Jones or Benitez, a district court ought to do so in
order to avoid any issue on appeal as to whether it properly reviewed the record.

                                           -11-
to give defendant right of allocution at his sentencing on revocation of supervised
release which is clear error). The denial of Azure’s right to presentence allocution for
the sentence imposed for revocation of supervised release is a “significant procedural
error.” See Gall v. United States, 552 U.S. ___, ___, 128 S. Ct. 586, 597 (2007); see
also United States v. Desantiago-Esquivel, 526 F.3d 398, 401 (8th Cir. 2008)
(determining that Gall’s list of significant procedural errors is not exhaustive).
However, because it is well settled that appellants must raise their issues on appeal in
their opening briefs, Roemmich v. Eagle Eye Dev., LLC, 526 F.3d 343, 355 n.12 (8th
Cir. 2008), Azure waived the allocution issue by failing to do so.

                                           D.

       Azure’s final claim is that his sentence must be vacated because it violates
Johnson v. United States, 529 U.S. 694 (2000). The Supreme Court clarified in
Johnson that post-revocation sanctions are “part of the penalty for the initial offense”;
they are not punishment for the offense which triggers the revocation. See id. at 700;
see also United States v. Soto-Olivas, 44 F.3d 788, 790 (9th Cir. 1995) (“[T]he entire
sentence, including the period of supervised release, is the punishment for the original
crime, and it is the original sentence that is executed when the defendant is returned
to prison after a violation of the terms of his release.” (quotation omitted)). Azure
contends that his sentence runs afoul of Johnson because his sentence constituted
punishment for the state felony robbery conviction as opposed to his original
conviction. If this were the case, Azure’s sentence would raise “serious constitutional
questions . . . .” See Johnson, 529 U.S. at 700.

       Azure’s relies on a portion of the district court’s order which states that “the
fact that Defendant was convicted of the crime of robbery is alone sufficient to render
the sentence reasonable” for his contention that his sentence was actually a sentence
for the state robbery charge. However, the district court also declared,



                                          -12-
      The facts attendant to the state robbery conviction are of limited
      importance to this Court’s determination of the proper sentence to
      impose. . . . In short, the resolution of whether Defendant kicked,
      punched, or stole from the victim is immaterial to this Court’s
      determination of the proper sentence; this Court is merely concerned
      [with] whether he was convicted of a violent felony, which would result
      in yet another violation of the terms of his supervised release.

       As correctly noted by the district court, the robbery conviction was a Grade A
violation of the terms of Azure’s supervised release because it was a state crime
punishable by a term of imprisonment exceeding one year that is a crime of violence.
See United States Sentencing Commission, Guidelines Manual, § 7B1.1(a)(1)(i) (Nov.
2007). Viewing the district court’s order as a whole, Azure’s sentence was based on
his violation of the terms of his supervised release, “part of the penalty for his initial
offense,” as required by Johnson. See 529 U.S. at 700.

                                          IV.

      The judgment of the district court is affirmed.
                     ______________________________




                                          -13-
