*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this opinion should not be published and is not precedent except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.

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UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 98-11332

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

STEPHEN LAND,

Defendant-Appellant.

 

Appeal from the United States District Court

for the Northern District of Texas

(3:97-CR-18-ALL-R)

October 18, 1999

Before REYNALDO G. GARZA, JOLLY, and WIENER, Circuit Judges.

PER CURIAM:*

In this appeal from the district court’s revocation of

supervised release and imposition of an additional term of

imprisonment, Defendant-Appellant Stephen Land contends that he did

not confess to, or concede the truth of, the probation office’s

allegations of his violation of the terms of his release. Land

insists that the district court’s reliance on his lawyer’s

admission of the allegations as true is insufficient to comply with
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the requirements of due process. For the reasons set forth below,

we reject Land’s contentions and affirm.

I.

FACTS AND PROCEEDINGS

In May, 1989, Land pleaded guilty to two counts of a

multicount indictment charging narcotics violations. He was

sentenced to 180 months’ imprisonment and three years of supervised

release. In June, 1992, the court granted the government's motion

to reduce Land’s sentence to a total of 90 months’ imprisonment

because of his post-sentencing assistance to prosecutors. His term

of supervised release remained unchanged. 

In January, 1997, jurisdiction over Land’s supervised release

was transferred to the Northern District of Texas. In September,

1998, the probation office petitioned for, and the court issued, a

supervised-release violator's warrant, the bases of which were

allegations that Land used amphetamine on August 16, 1998, and

consumed alcohol on January 3, 1998. 

A brief hearing on the petition was held in district court on

October 30, 1998. At the hearing, the court began by asking Land’s

lawyer whether he had gone over the charged supervised-release

violation with his client, and counsel responded that he had. The

court then asked: “And what will be the plea be to those charges?”

Counsel responded: “The plea is true, Your Honor.” Although he

was present with his lawyer at the time, Land said nothing. The

court then stated:

Okay. Then based upon the defendant’s plea of

truth, I will find that the defendant violated his terms
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of supervised release as alleged in the supervised release

violation report. And all of the supervised release violations are

dealing with the defendant’s problems with drugs, in this case

amphetamine.

Land’s counsel then pleaded for leniency in the court’s sentencing

of Land, and Land made his only statement: “I messed up and made

a mistake and I’m sorry, Your Honor.”

The court revoked Land’s release and sentenced him to 18

months’ imprisonment. Land filed a timely notice of appeal.

II.

ANALYSIS

Land asserts that the district court did nothing during the

revocation hearing to ascertain that Land admitted to, or agreed

with, the allegations in the petition to revoke supervised release.

He contends that the court instead improperly accepted as

conclusive the statement of Land’s attorney that the plea was true.

Land argues that, in so doing, the court violated his rights under

the Fifth Amendment’s Due Process Clause. 

As Land failed to raise this issue in the district court,

review is for plain error. Pursuant to Fed. R. Crim P. 52(b), we

may correct forfeited errors only when the appellant shows that:

(1) there is an error; (2) that is clear or obvious; and (3) that

affects his substantial rights. United States v. Calverley, 37

F.3d 160, 162-64 (5th Cir. 1994) (en banc). Even when these

factors are established, the decision to correct the forfeited

error is still within the sound discretion of the appellate court,

and it will not exercise that discretion unless the error seriously

affects the fairness, integrity, or public reputation of the
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judicial proceedings. United States v. Olano, 507 U.S. 725, 735-36

(1993). “[I]n most cases the affecting of substantial rights

requires that the error be prejudicial, it must affect the outcome

of the proceeding.” Calverley, 37 F.3d at 164. 

In parole and probation-revocation hearings, due process

generally requires written notice of alleged violations, disclosure

to the parolee of the evidence against him, an opportunity to be

heard and present evidence, an opportunity to confront and crossexamine witnesses, an impartial hearing body, and a written

statement of reasons by the finder of fact. Morrissey v. Brewer,

408 U.S. 471, 489 (1972) (parole); United States v. Holland, 850

F.2d 1048, 1050-51 (5th Cir. 1988) (probation revocation). The

same due process rights are required for those facing revocation of

supervised release. United States v. Grandlund, 71 F.3d 507, 510

n.5 (5th Cir. 1995). An admission of the violation charged,

however, waives these due process protections. See Holland, 850

F.2d at 1050-51.

The issue here is whether Land admitted his guilt as to the

charged violations. The specific question is whether defense

counsel’s admission of his client’s guilt —— spoken in the

immediate presence of the client while he stands mute and makes no

effort to contest or disagree with it —— satisfies the requirement

of a statement of admission, or whether due process requires that

the defendant personally utter his admission of guilt. The

government argues that counsel’s statement under these facts was

sufficient, and that, in any event, Land’s subsequent statement to
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the court that he “messed up” should qualify as his admission of

guilt. 

In Holland —— an appeal following revocation of Holland’s

probation —— there was a question whether Holland “actually

admitted the probation violations charged during the probation

revocation hearing held.” 850 F.2d at 1051. The record contained

a form notation marked by the courtroom deputy clerk stating that

Holland admitted the allegations against him. Id. The transcript

of the probation-revocation hearing did not otherwise affirmatively

disclose that Holland admitted the probation violations. Id. We

concluded that the record was insufficient to support a finding

that Holland violated the terms of his probation because it was

unclear whether Holland actually admitted the charged violations.

Id. 

Whether Land’s attorney’s statement, made on behalf of Land

and in his presence, admitting to the probation violations, is

sufficient to support the district court’s determination of guilt

presents a factually distinct situation from the one in Holland.

Land’s counsel’s clear and unequivocal words of guilt, spoken

during the dialogue with the court, and followed first by Land’s

silent acquiescence and immediately thereafter by Land’s allocution

in which he conceded that he had “messed up” —— a statement that in

context, can signify nothing less than ratification of his lawyer’s

concession of violation, if not a personal confession —— provides

adequate support for a finding that Land freely and knowingly

admitted to the alleged violations. We find no plain error in the

district court’s actions, much less an error that seriously affects
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the fairness, integrity, or public reputation of the proceedings

that led to the revocation of Land’s supervised release and

assessment of his new sentence.

AFFIRMED.