The Honorable Henry Woods, United States District Judge for 1

the Eastern District of Arkansas.

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No. 95-3453

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United States of America, *

*

Appellee, *

* Appeal from the United States

v. * District Court for the

* Eastern District of Arkansas.

Lorenzo J. Cotroneo, *

*

Appellant. *

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 Submitted: February 14, 1996

 Filed: July 11, 1996

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Before BOWMAN, BEAM, and MORRIS SHEPPARD ARNOLD, Circuit Judges.

___________

BOWMAN, Circuit Judge.

While Lorenzo J. Cotroneo was serving two concurrent terms of

supervised release on convictions for credit card fraud and escape, the

government sought revocation of Cotroneo's supervised release on the ground

that he had violated certain conditions of release. After a revocation

hearing, the District Court revoked Cotroneo's supervised release, and

1

sentenced him to consecutive periods of imprisonment on the two

convictions. On appeal, Cotroneo argues that upon revocation of his

supervised release, the District Court should have imposed concurrent

rather than consecutive sentences, and that the District Court abused its

discretion in denying his request for a continuance of the revocation

hearing. We affirm.
 A "petition for warrant" is a pleading by which the

2

government formally initiates a court proceeding for the revocation

of an individual's supervised release. 

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I.

On June 19, 1992, Cotroneo pled guilty to credit card fraud and was

sentenced in the United States District Court for the Eastern District of

Arkansas to twenty-four months of imprisonment followed by three years of

supervised release. While serving his sentence for credit card fraud,

Cotroneo escaped from a halfway facility in Tennessee. On October 20,

1994, Cotroneo pled guilty to escape and was sentenced in the United States

District Court for the Western District of Tennessee to fifteen months of

imprisonment followed by three years of supervised release. The sentence

for the escape conviction was imposed concurrently with the sentence

Cotroneo had been serving for credit card fraud. In October 1994, having

completed serving the concurrent terms of imprisonment, Cotroneo began

serving his terms of supervised release. 

Meanwhile, on January 25, 1995, Cotroneo's probation officer filed

a petition for warrant in the United States District Court for the Eastern 2

District of Arkansas. The petition alleged that Cotroneo had violated the

conditions of his supervised release, in that he: (1) failed to submit

monthly reports to the probation office; (2) failed to report in person to

the probation office; and (3) moved from his residence in Arkansas without

notifying the probation office. See Petition for Warrant or Summons for

Offender Under Supervision, No. LR-CR-91-200(1) (E.D. Ark. filed Jan. 25,

1995). On September 5, 1995, Cotroneo waived his right to a preliminary

hearing on the petition and requested the District Court to proceed to a

final revocation hearing. Cotroneo, recognizing that the violations

alleged in the petition also affected his concurrent supervised release

term in Tennessee, agreed to its consolidation with the hearing on the

Arkansas term 
 Neither in his brief nor at oral argument did Cotroneo

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identify, by name or description, the "evidence" that he claims he

received only one day before the hearing. The government has

identified these materials as government's hearing exhibits 7 and

8. See Brief of Government at 9. Government Exhibit 7 is a copy

of a California driver's license, issued to a Brad Magruder, but

bearing Cotroneo's photograph. Government Exhibit 8 consists of

two Odessa Police Department photograph identification forms, in

which his victims identify Cotroneo as the perpetrator of credit

card fraud. See Addendum to Brief of Government at 4-6. Cotroneo

does not dispute, and we therefore accept for present purposes, the

government's identification of exhibits 7 and 8 as the "evidence"

allegedly turned over to Cotroneo insufficiently in advance of the

revocation hearing.

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of supervised release. On September 11, 1995, jurisdiction as to the

escape charge was transferred from the Western District of Tennessee to the

Eastern District of Arkansas. 

On September 12, 1995, Cotroneo's probation officer filed a

supplemental petition for warrant in the District Court. The supplemental

petition realleged the violations mentioned in the original petition, and

further alleged that Cotroneo had committed additional violations of the

general conditions of his supervised release, including: (1) use of false

information concerning his social security number on an employment

application, in violation of 42 U.S.C. § 408(a)(7)(B); (2) providing false

information to the government in violation of 18 U.S.C. § 1001; (3)

fraudulent use of credit cards in violation of 18 U.S.C. § 1029(a)(1); and

(4) unauthorized use of a motor vehicle in violation of Texas state law.

See Corrected Supplemental Petition for Warrant or Summons for Offender

Under Supervision, No. LR-CR-91-200(1) (E.D. Ark. filed Sept. 20, 1995).

The District Court held a revocation hearing on September 20, 1995.

At that hearing, Cotroneo admitted to violating his supervised release as

alleged in the government's original petition, but objected to proceeding

on the four violations alleged in the government's supplemental petition.

Cotroneo argued that because he had not received certain "evidence" until

the day before the hearing, he needed additional time to prepare his case.3

The 
 In a supervised release revocation hearing a court may revoke 4

a defendant's supervised release if the court finds by a

preponderance of the evidence that the defendant violated a

condition of supervised release. See 18 U.S.C. § 3583(e)(3)

(1994).

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District Court denied Cotroneo's request for a continuance. The government

called as witnesses William Ross, a United States postal inspector, and

Gregory Stemis, a special agent with the United States Secret Service, who

testified with respect to their involvement in investigating the

supplemental allegations against Cotroneo. During the course of the

hearing, the government also introduced thirteen exhibits relating to the

supplemental allegations. Cotroneo's counsel cross-examined both of the

government's witnesses. At the conclusion of the government's case,

Cotroneo elected not to present any evidence. The court found that

Cotroneo had violated the conditions of his supervised release. The court 4

accepted Cotroneo's admission to violating his supervised release as

alleged in the government's initial petition. The court further found that

Cotroneo had violated his supervised release as alleged in the government's

supplemental petition. The court revoked Cotroneo's two concurrent terms

of supervised release that he was serving for credit card fraud and escape,

and imposed sentences of twenty-four months of imprisonment on each of

those convictions, to be served consecutively.

II.

Cotroneo argues that the District Court erred in sentencing him to

consecutive, rather than concurrent, terms of imprisonment upon revocation

of his supervised release. We reject this argument. 
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The decision to impose a consecutive or concurrent sentence upon

revocation of supervised release is committed to the sound discretion of

the district court, see 18 U.S.C. § 3584(a) (1994); cf. United States v.

Smitherman, 889 F.2d 189, 191 (8th Cir. 1989) (noting discretion of court

in sentencing defendant to concurrent or consecutive sentences upon

conviction), cert. denied, 494 U.S. 1036 (1990). When imposing multiple

sentences under 18 U.S.C. § 3584 (1994), the district court is directed to

refer to 18 U.S.C. § 3553(a) (1994), which enumerates the factors that

shall be considered in imposing sentences under § 3584, including the

nature, circumstances, and seriousness of the offense; the history of the

defendant; and the need for adequate deterrence. 

At the time of the revocation hearing, Cotroneo was serving two

concurrent terms of supervised release: one for a credit card fraud

conviction, a Class C Felony, see 18 U.S.C. §§ 1029(a)(2), 3559(a)(3)

(1994); and one for an escape conviction, a Class D Felony, see 18 U.S.C.

§§ 751(a), 3559(a)(4) (1994). Under 18 U.S.C. § 3583(e)(3) (1994) the

court may, upon finding that the defendant violated a condition of

supervised release, revoke the term of supervised release and require the

defendant to serve all or part of the supervised release in prison.

Section 3583(e)(3) provides that "a defendant whose term is revoked . . .

may not be required to serve . . . more than 2 years in prison if such

offense is a class C or D felony." Therefore, the District Court acted

properly (and Cotroneo does not contend otherwise) in sentencing Cotroneo

to two years of imprisonment for the credit card fraud conviction and two

years of imprisonment for the escape conviction. The only issue is whether

the District Court erred in running the sentences consecutively rather than

concurrently.

We conclude that the District Court acted within its discretion in

sentencing Cotroneo to consecutive terms of imprisonment. Section 3584(a)

provides: "If multiple terms of imprisonment are imposed on a defendant at

the same time, . . . the 
 Indeed, here, the District Court for the Western District of 5

Tennessee, consistent with 18 U.S.C. § 3624(e), ran Cotroneo's

initial period of supervised release on the escape conviction

concurrently with the initial period of supervised release that the

court for the Eastern District of Arkansas had imposed on Cotroneo

on the credit card conviction.

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terms may run concurrently or consecutively . . . . " Because § 3584(a)

is not limited, in terms, to the imposition of sentence at the conclusion

of trial (as distinguished from the imposition of sentence after revocation

of a defendant's supervised release), we conclude that the District Court

retains discretion to impose either concurrent or consecutive sentences

after revocation of a defendant's supervised release. We see nothing in

the record to indicate that the District Court abused its discretion in

imposing consecutive sentences under § 3584(a) or that it failed to

consider the relevant factors set forth in § 3553(a). 

Cotroneo suggests that, notwithstanding the seemingly discretionary

language of § 3584(a), the sentencing judge is required by a different

statutory provision, 18 U.S.C. § 3624(e) (1994), to run concurrently terms

of imprisonment imposed after revocation of supervised release. We do not,

however, believe that § 3624(e) bears the weight that Cotroneo would place

upon it. Section 3624(e) does not control the imposition of sentence after

revocation of supervised release; rather § 3624(e) provides that "[t]he

term of supervised release . . . runs concurrently with any Federal, State,

or local term of probation or supervised release." Section 3624(e) thus

by its terms governs the trial court's initial imposition of terms of

supervised release, not its subsequent sentencing discretion upon

revocation of that supervised release. Cf. United States v. Gullickson,

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982 F.2d 1231, 1236 (8th Cir. 1993) (holding that § 3624(e) requires court

to impose consecutive, rather than concurrent, terms of supervised release

to follow terms of imprisonment on multiple convictions). We conclude that

§ 3584(a) allowed the District Court to impose consecutive rather 
 Although the government suggests that the United States

6

Sentencing Guidelines also lend support to the District Court's

decision to sentence Cotroneo to consecutive, rather than

concurrent sentences, we need not and do not address that

contention because we are satisfied that the District Court was

authorized under 18 U.S.C. § 3584(a) to impose the sentence in the

manner in which it did.

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than concurrent sentences upon revocation of Cotroneo's concurrent terms

of supervised release. 

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III.

Cotroneo argues that the District Court abused its discretion by

denying his motion for a continuance. We do not agree. During the

revocation hearing, Cotroneo's counsel represented to the court that "[w]e

didn't get all the evidence until, like, yesterday," Hearing Transcript

at 4, and that "we are not ready because [Cotroneo] is indicating to me

there is evidence and individuals and witnesses he would like to have, and

I believe would be properly available to him," id. at 5. 

District courts are afforded broad discretion when ruling on requests

for continuances. Morris v. Slappy, 461 U.S. 1, 11 (1983). Continuances

generally are not favored and should be granted only when the party

requesting one has shown a compelling reason. Id. We will reverse a

district court's decision to deny a motion for a continuance only if the

court abused its discretion and the moving party was prejudiced by the

denial. See Souder v. Owens-Corning Fiberglas Corp., 939 F.2d 647, 651

(8th Cir. 1991); cf. United States v. Ulrich, 953 F.2d 1082, 1085 (8th Cir.

1991) (criminal case). 

The District Court did not abuse its discretion in denying Cotroneo's

request for a continuance. Cotroneo told the court that he needed more

time to prepare for the revocation hearing primarily because he had

received certain "evidence" only one day before the 
 Cotroneo also argues that the government violated Federal

7

Rule of Criminal Procedure 32.1(a)(2) in delivering to him the

aforementioned exhibits only one day before the revocation hearing.

This argument is without merit. Rule 32.1(a)(2) provides that an

individual against whom the government has initiated a revocation

hearing is entitled to certain due process protections, including

"written notice of the alleged violations" and "disclosure of the

evidence against the person." Here, the government comported with

the rule by giving Cotroneo notice of the allegations and evidence

against him in the detailed and specific supplemental petition, and

by making its hearing exhibits available to Cotroneo prior to the

commencement of the revocation hearing. See United States v.

Kirtley, 5 F.3d 1110, 1113 (7th Cir. 1993) (holding that petition

setting forth specific condition of probation allegedly violated,

time period of violation, basic facts, and statute violated gave

defendant adequate notice of his probation violations as required

by due process). 

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hearing. This "evidence," however, consisted of two exhibits totalling

three pages, which were straightforward and capable of review in a short

time period. See supra note 3. Although counsel also referred to

"individuals and witnesses" whose presence at the hearing Cotroneo claimed

he required, the record contains no suggestion as to who those persons

were, why their testimony was necessary, or why their appearance had not

been secured prior to the opening of the hearing. Cotroneo attended the

revocation hearing and was represented by counsel, who cross-examined the

government's witnesses at length, including questioning them with respect

to government exhibits 7 and 8. Furthermore, the supplemental petition,

filed by the probation officer and received by Cotroneo eight days before

the hearing, fully apprised Cotroneo of the nature of the allegations

against him, including specific dates, locations, names of victims, factual

details, and the likely evidence that would be presented at the hearing.

In these circumstances, we hold that Cotroneo has fallen considerably short

of demonstrating that the District Court abused its discretion in denying

a continuance.7
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For the foregoing reasons, Cotroneo's sentence is affirmed. 

A true copy.

Attest:

CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.