U.S. v. Azure

• Decision Date: 27 August 2008
• Docket Number: No. 07-2443.,07-2443.
• Citation: 539 F.3d 904
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Daniel P. AZURE, Defendant-Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

539 F.3d 904

UNITED STATES of America, Plaintiff-Appellee, v. Daniel P. AZURE, Defendant-Appellant.

No. 07-2443.

United States Court of Appeals, Eighth Circuit.

Submitted: February 14, 2008.

Filed: August 27, 2008.

Richard J. Henderson, AFPD, argued, Fargo, ND, for appellant.

Brett M. Shasky, AUSA, argued, Fargo, ND, for appellee.

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.

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 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.

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 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.

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, 29 S.Ct. 42, 53 L.Ed. 126 (1908); Capron v. Van Noorden, 6 U.S. 126, 2 Cranch 126, 127, 2 L.Ed. 229 (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 ... entering] 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....