                                                                                  FILED
                                                                      United States Court of Appeals
                      UNITED STATES COURT OF APPEALS                          Tenth Circuit

                             FOR THE TENTH CIRCUIT                           March 9, 2018
                         _________________________________
                                                                          Elisabeth A. Shumaker
                                                                              Clerk of Court
UNITED STATES OF AMERICA,

      Plaintiff - Appellee,

v.                                                          No. 17-6143
                                                  (D.C. No. 5:13-CR-00074-HE-1)
DAVID ROBERT MCFARLAND,                                    (W.D. Okla.)

      Defendant - Appellant.
                      _________________________________

                             ORDER AND JUDGMENT*
                         _________________________________

Before MORITZ, McKAY, and KELLY, Circuit Judges.
                  _________________________________

      David McFarland appeals the district court’s order revoking his supervised

release pursuant to 18 U.S.C. § 3583. He contends that he was denied his right of

cross-examination at the preliminary hearing and that the evidence was insufficient to

support the criminal allegations underlying the revocation. We dismiss the first

argument for lack of jurisdiction and affirm on the second.




      *
        After examining the briefs and appellate record, this panel has determined
unanimously to honor the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
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 This order and judgment is not binding precedent,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
and 10th Cir. R. 32.1.
        I.    Background

        In September 2013, Mr. McFarland was convicted of being a felon in

possession of a firearm and sentenced to 37 months’ imprisonment, followed by three

years’ supervised release. Two of the conditions of his supervised release were that

he not commit another crime and that he not associate with any person engaged in

criminal activity. He began his supervised release in September 2016. In May 2017,

the United States Probation Office sought to revoke his release based on his attempt

to steal a local farmer’s Polaris Ranger ATV.

        The Polaris Ranger was kept in a pole barn, where the farmer stored hay. The

pole barn had a roof, two walls, and moveable panels erected to keep cattle out of the

barn. On May 11, 2017, the farmer noticed that his Polaris Ranger had been moved

and the key was not in its hiding place. Therefore, he and three friends staked out the

barn that night, with the farmer in the barn armed with a rifle, two of the friends in a

pickup truck near the locked gate to the property, and the third in a pickup truck

along the road. At about 1:00 a.m. Mr. McFarland and one Jared Fuller drove up to

the locked gate in a pickup truck pulling a trailer. Using bolt cutters, one of them cut

the lock on the gate to the property. Then both men walked to the barn and began to

unpin the panels. The farmer shouted at the men to stop, they took off running, and

the farmer fired three or four warning shots. Mr. McFarland ran back to his truck and

drove away. The farmer fired another shot at the truck, intending to shoot the front

tire.



                                            2
      The farmer’s friends followed Mr. McFarland along the road, where a police

car fell in behind the McFarland pickup truck in response to a call about a shooting.

The officer activated his lights and sirens, but Mr. McFarland did not pull over, nor

did he speed or turn off his headlights. The officer followed him to his grandfather’s

residence where the officer arrested Mr. McFarland.

      Mr. McFarland was charged in state court with burglary in the second degree,

eluding/attempting to elude a police officer, malicious destruction of property, and

trespassing. The government relied on these charges, as well as an additional charge

of associating with another in engaging in crime, to seek revocation. A magistrate

judge conducted a preliminary hearing and determined that the witnesses did not need

to appear in person. At the conclusion of the hearing, the magistrate judge held that

the government had established probable cause and bound Mr. McFarland over for a

final revocation hearing. A district judge held a final revocation hearing at which the

farmer, one of his friends, the arresting police officer, and a probation officer

testified. Mr. McFarland’s attorney cross-examined all witnesses. The district court

found that all of the charged violations were established by a preponderance of the

evidence. Consequently, the court revoked Mr. McFarland’s supervised release and

imposed a sentence of 14 months’ incarceration to be followed by an additional

12 months’ supervised released.




                                            3
      II.    Standards of Review

      “We review the district court’s decision to revoke supervised release for abuse

of discretion. Legal questions relating to the revocation of supervised release are

reviewed de novo.” United States v. Jones, 818 F.3d 1091, 1097 (10th Cir. 2016)

(internal quotation marks omitted).

      III.   Denial of Cross-examination at Preliminary Hearing

      Mr. McFarland contends the magistrate judge’s failure to require the

appearance of the witnesses at the preliminary revocation hearing where they could

be subjected to cross-examination ran afoul of Jones and Fed. R. Crim. P.

32.1(b)(1)(B)(iii). Jones held that a “balancing test applies when determining a

releasee’s confrontation rights at a revocation hearing,” and noted that the test

applies to preliminary revocation hearings. 818 F.3d at 1099 & n.5. The test asks

“whether the interest of justice does not require the witness to appear by balancing

(1) the person’s interest in the constitutionally guaranteed right to confrontation

against (2) the government’s good cause for denying it.” Id. at 1099-1100 (internal

quotation marks omitted).

      Even if the magistrate judge’s failure to apply the balancing test was error, we

conclude that this issue is moot. To show Article III standing, a litigant must

demonstrate “(1) an injury in fact; (2) a causal connection between the injury and the

challenged action; and (3) a likelihood that a favorable decision will redress the

injury.” Ind v. Colo. Dep’t of Corr., 801 F.3d 1209, 1213 (10th Cir. 2015) (internal

quotation marks omitted). “[A] case becomes moot when a [claimant] no longer

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suffers actual injury that can be redressed by a favorable judicial decision.”

Id. (internal quotation marks omitted).

       Mr. McFarland acknowledges that he was able to confront and cross-examine

the witnesses at the final revocation hearing. Nevertheless, he relies on one of the

exceptions to the mootness doctrine—“the issue is deemed a wrong capable of

repetition yet evading review,” id. (internal quotation marks omitted). He contends

that this is an issue that may never come before the court in a posture warranting a

decision.

       This exception requires two showings for a claimant to meet his burden to

establish that the wrong is capable of repetition yet evading review: “(1) the

challenged action was in its duration too short to be fully litigated prior to its

cessation or expiration, and (2) there is a reasonable expectation that the same

complaining party will be subjected to the same action again.” Id. at 1215 (brackets

and internal quotation marks omitted). Mr. McFarland has made no showing, nor

does he claim, that he will again be charged with revocation of his supervised release.

Therefore, he has failed to establish the second element, a failure that is fatal to his

argument. See id. at 1216 (holding failure to establish second element is dispositive).

       Consequently, any ruling by this court would be an impermissible advisory

opinion. See Golden v. Zwickler, 394 U.S. 103, 107 (1969) (“The federal courts

established pursuant to Article III of the Constitution do not render advisory

opinions.” (brackets and internal quotation marks omitted)). Because this claim is

moot, we lack jurisdiction and dismiss the claim. See Ind, 801 F.3d at 1211.

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      IV.    Sufficiency of the Evidence

      Mr. McFarland asserts that the evidence was insufficient to establish that he

violated the conditions of his supervised release. A district court may revoke a

defendant’s supervised release if it “finds by a preponderance of the evidence that

[he] violated a condition of supervised release.” 18 U.S.C. § 3583(e)(3).

      Mr. McFarland was charged with second degree burglary pursuant to

Okla. Stat. tit. 21, § 1435, which provides:

      Every person who breaks and enters any building or any part of any
      building, room, booth, tent, railroad car, automobile, truck, trailer, vessel or
      other structure or erection, in which any property is kept, or breaks into or
      forcibly opens, any coin-operated or vending machine or device with intent
      to steal any property therein or to commit any felony, is guilty of burglary
      in the second degree.

He maintains that the pole barn does not come within the statutory definitions of a

structure so he was not guilty of this crime.

      The pole barn in this case is similar to the lumberyard held to qualify as an

“other structure” under the statute in Stanley v. State, 512 P.2d 829, 832

(Okla. Crim. App. 1973). Like the fence around the lumberyard in Stanley, the

moveable panels on the pole barn in this case were “erected mainly for the purpose of

protecting property within [their] confines and [were], in fact, an integral part of a

closed compound.” Id. (internal quotation marks omitted). Therefore, their function

was “analogous to that of a ‘building’” and the moveable panels “constitute[d] a

‘structure’ subject to being burglarized.” Id. (internal quotation marks omitted).




                                             6
Thus, the evidence was sufficient for the district court to find by a preponderance of

the evidence that Mr. McFarland violated the second-degree burglary statute.

       Next, Mr. McFarland claims the evidence was insufficient on the charge of

eluding/attempting to elude a police officer. Okla. Stat. tit. 21, § 540A(A), provides

as follows:

       A. Any operator of a motor vehicle who has received a visual and audible
       signal, a red light and a siren from a peace officer driving a motor vehicle
       showing the same to be an official police, sheriff, highway patrol or state
       game ranger vehicle directing the operator to bring the vehicle to a stop and
       who willfully increases the speed or extinguishes the lights of the vehicle in
       an attempt to elude such peace officer, or willfully attempts in any other
       manner to elude the peace officer, or who does elude such peace officer, is
       guilty of a misdemeanor.

       Mr. McFarland points out that he did not increase his speed or extinguish his

vehicle lights. But he does not claim that he obeyed the officer’s lights and siren.

Instead, he drove to his grandfather’s residence. Because § 540A(A) applies to one

who simply eludes a police officer, we conclude that the evidence was sufficient for

the district court to find by a preponderance of the evidence that Mr. McFarland

violated this statute.1

       Mr. McFarland also challenges the sufficiency of the evidence on the charge of

malicious destruction of property. This charge was based on cutting off the lock


       1
         Mr. McFarland cites Oklahoma Uniform Jury Instruction—Criminal 6-29 to
support his argument that he did not attempt to elude the officer. But in accordance
with Oklahoma law, the jury instruction does not differ from the statute. See Mitchell
v. State, 2016 OK CR 21, ¶ 24, 387 P.3d 934, 943 (“Trial courts should use the
uniform jury instructions if they state the applicable law.” (internal quotation marks
omitted)).

                                             7
securing the farmer’s gate, in violation of Okla. Stat. tit. 21, § 1760(A)(1). He

contends that the evidence established only that he was one of two people involved in

cutting off the lock. The farmer testified that he saw two people through his rifle’s

night-vision scope. R. Vol. 3, at 64. He saw both people at the lock. After they cut

the lock, they unchained the gate and it swung open. Id. at 66. He did not, however,

see which individual actually cut the lock. Id. at 93.

      Under Oklahoma law, “[a]ll persons concerned in the commission of

crime, . . . whether they directly commit the act constituting the offense, or aid and

abet in its commission, though not present, are principals.” Okla. Stat. tit. 21, § 172.

“[O]nly slight participation is needed to change a person’s status from a mere

spectator into an aider and abettor.” Conover v. State, 933 P.2d 904, 910

(Okla. Crim. App. 1997), abrogated on other grounds by Bosse v. Okla., 137 S. Ct. 1

(2016). Even if Mr. McFarland did not actually cut the lock, he was aware that

Mr. Fuller had cut it. Cf. id. at 911 (observing that the defendant “was aware that

fatal blows were being delivered [by another] to the victim”). In addition, he was

present during the process and he went through the gate after the lock and chain had

been removed. Thus, the evidence was sufficient for the district court to find by a

preponderance of the evidence that Mr. McFarland violated § 1760(A)(1).

      Mr. McFarland further asserts that the evidence was insufficient on the

trespassing charge. The applicable statute states:

      A. Whoever shall willfully or maliciously enter the garden, yard, pasture or
      field of another after being expressly forbidden to do so or without
      permission by the owner or lawful occupant thereof when such property is

                                           8
      posted shall be deemed guilty of trespass . . . . For purposes of this section,
      “posted” means exhibiting signs to read as follows: “PROPERTY
      RESTRICTED”; “POSTED -- KEEP OUT”; “KEEP OUT”; “NO
      TRESPASSING”; or similar signs which are displayed. Property that is
      fenced or not fenced must have such signs placed conspicuously and at all
      places where entry to the property is normally expected.

Okla. Stat. tit. 21, § 1835(A). Mr. McFarland contends that the sign posted at the

gate in question was not conspicuous because it was a single sign that was bent

around a pole and angled to one side.

      The parties have not cited a case addressing what is required for a sign to be

conspicuous as contemplated by the statute, and we have found none. We have

considered the exhibits showing the no-trespassing sign in question. We conclude

that the evidence was sufficient for the district court to find by a preponderance of

the evidence that Mr. McFarland violated § 1835(A).

      Finally, Mr. McFarland briefly asserts that he was not on notice to defend

against the charges. Although he relies on United States v. Mullane, 480 F. App’x

908 (10th Cir. 2012), he has not attempted to show that he was denied the minimum

protections due a defendant in a revocation hearing identified in Mullane See id.

at 910.




                                             9
      V.     Conclusion

      Mr. McFarland’s claim that he was denied his right of cross-examination at the

preliminary hearing is dismissed for lack of jurisdiction. The district court’s

judgment is affirmed in all other respects.


                                              Entered for the Court


                                              Monroe G. McKay
                                              Circuit Judge




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