2004 D e c i sion s O p inion s of the U nit e d S t at e s C our t of Appe al s for the Thir d C ir c uit 6-7-2004 

# U S A v . R i ve rs P r e c e de n t i al or N on-P r e c e de n t i al : N on-P r e c e de n t i al D ocke t N o . 03-4626

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Thi s de c i sion i s br ou gh t t o you for f r e e a nd ope n a c c e s s b y the O p inion s of the U nit e d S t at e s C our t of Appe al s for the Thir d C ir c uit at V i l l a no va U nive r sit y S choo l of L a

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w . v i l l a no va . e du/thir dc ir c uit_2004/609* Hon. Arthur L. Alarcón, Seni or Judge, United States Court of Appeal s for the

Ninth Circui t, s itting by designation. NOT PRE CEDENT IAL UN ITED STA TES CO UR T O F A PPE AL S FO R T HE TH IRD CIR CU IT

NO. 03-4626

UNITED S TATES OF AMERI CA

v. BRYA N RIVERS,

Appellant

On A ppeal from the Un ited States District Co urt

for the D istrict of Delaw are (D.C. Crimi nal No. 98-CR-00035) Distri ct Judge: Hon. Sue L. Robinson, Chief Judge

Submitte d Under Third Circ uit LAR 34.1(a)

May 26, 2004 Be for e: S CIR ICA , Chief Judge , R ENDELL , and A LARCÓN * , Circuit Judges (Fil ed June 7, 2004)

OPINI ON OF THE COURT AL AR CÓ N, Circuit

Judge
. Appellant

Bryan Rive rs appeal s from the or der revoki ng his supervised r elease and sentenci ng him to ei ghteen months of incarc erati on. Because we concl ude that the dis tri ct2

co ur t p ro pe rl y fo undth at Mr. Ri ve rs vi ol at ed th e c ond it io ns of hi s s upe rv is ed re le as e, we aff irm. I On June 24, 19 98, M r. Rive rs pled guilty to on e cou nt of b eing a felon in po ss es sio n o f a fir ea rm in vi ol ati on of 18 U .S .C . § 9 22 (g )(1 ). H e w as se nt en ce d t o f or tysix m ont hs o f inc arce ratio n an d th ree ye ars o f su per vise d re leas e on Jan uar y 20, 2 000
. M r. Rive rs com pleted his sen tence and w as relea sed f rom a fed eral co rrection al institute on January10, 2003. His term of supervised r elease was set t o expire on J anuary9, 2006. On M ay 13, 2003, Mr. River s was arres ted byWilmington, Delaware poli ce officer s and charged wit h state-law offense s rel ated t o heroin di stribution. In August of 2003, the Distri ct Court f or the Dis tri ct of Delaware i ssued a summons for t he arres t of Mr. Rivers for

violat ion of the conditi ons of his s upervis ed rele ase. On October 9, 2003, Mr. Rivers was quest ioned for four

hours byWilmington police officer s as a sus pect i n an indecent exposure i nvesti gation. He was released without bei ng charged with a violation of s tate law. On October 14, 2003, the Wilm ington Po lice Depa rtment notified the United S tates Probation O ffice of M r. Rivers’ s October 9, 2003 contact with the pol ice. Because Mr. Rivers fail ed to repor t thi s poli ce contact

to the United State s Probati on Office, a warr ant was is sued for hi s arre st. Mr. Rivers was ar rest ed on the same date. The district c ourt conducted a revocation heari ng on November 18, 2003. After1 The charges arisi ng out of Mr. River s’s conduct on May 13, 2003 were stillpending on the date of the revocation proceedings. 3 hearing the e vidence a nd the argu ment of counse l, the district court found tha t Mr. R ivers had violated the conditi ons of his s upervis ed rele ase by committi ng another s tateor fed er al cr ime 1 and by fai ling to notify his probation off

icer wit hin seventy- two hours of his having b een qu estioned by law enforce ment of ficers. The d istrict court revoked M r. Rivers’s supervised releas e and sentenced him to imprisonment for eighteen months. II A. Mr. Rivers contends that the dis tri ct court

erred i n determi ning that he violated the conditi on of his supe rvise d relea se that he report

any cont act with law enforcement officer s withi n seventy -two hours. He argues that he did not vi olate this conditi on because he was quest

ioned on Thursday , October 9, 2003. He maintai ns that under the

ru le o f le ni ty, th e in ter ve ni ng w ee ke nd , an d t he C ol um bu s D ay h ol id ay o n M on da y, October 12, 2003, when the Probati on Office was close d, tol led the seventy -two hour per iod . Th is co urt e xer cise s ple nar y revie w o ver a dis trict c our t’s leg al co nclu sion s. United States v. Hodge , 321 F.3d 429, 433 (3d Cir. 200 3). Standard Condit

ion Number 11 of Mr. Rivers’ s supervi sed rel ease provi ded that he “[ s]h all no tif y th e p ro ba tio n o ff ice r w ith in 72 ho ur s o f b ein g a rre ste d o r q ue sti on ed by a law e nfo rcem ent of ficer.” M r. Rive rs con tends that the rule of lenity is app licable beca use th e term “w ithin 72 hou rs” is am bigu ous. W e disag ree. T he lan guag e use d in4

Condition Number 11 i s free of any ambiguity. The rule of l enity is i napplic able. Where, as here, the intent of the draft er has been “ expresse d in reas onablyplain terms, ‘ that language must

ordinarily

be regarde d as conclus ive. ’” Griffin v. Oceanic Contractors, Inc. , 458 U.S. 564, 570 (1982) (quot ing Consu mer Prod. Safe tyComm’n v . GTE Syl vania, Inc. , 447 U .S. 102, 108 (1980)). Mr. Rivers has referred us to fede ral r ules and ca se law where the computati on of time limitations exclud es intervening week ends an d holidays. In each instan ce, how ever, lang uag e ex tend ing the a ppl icab le tim e lim it is cle arly se t for th. See Powell v. Nevada , 511 U.S. 79, 81 ( 1994) (i nterpreting a Nevada statute that provi des: “I f an arres ted pers on is not brought before a magist rate wit hin 72 hours a fter arrest , excl uding nonjudi cial days”); Tony L. ex rel. Simpson v. Childers , 71 F.3d 1182, 1186, n.6 ( 6th Cir. 1995) (interpreting a st ate st atute that a written report

be generat ed after

recei pt of a re port of child a buse “w ithin sev enty-two (72) h ours, e xclus ive of we eken ds an d ho lidays”); See also Rule 26(a)( 2) of the Fede ral Rule s of Appellate Procedure ( stating that in computi ng time, “[ e]xclu de inte rmed iate Sa turdays, S und ays, and le gal ho lidays w hen th e perio d is less t han 11 days , unle ss st ated i n calendar days ”); Rule45(a)( 2) of the Fede ral Rule s of Criminal Procedure (providing that, in computing time “[e]xclude intermediate Saturday s, Sund ays, and legal holidays wh en the period is less than 11 da ys”). Cond itio n Numb er11 c ont ai ns n o co mpar abl e l ang uag e that extend s the time period bey ond seventy -two hours. Its meani ng is pl ain and unambiguous . The dis tri ct

cou rt did not err in dete rmin ing that “ 72 h our s m ean s 72 hou rs.”5 B. Mr. Rivers further contends that the dist rict court violated his right to due process by cons ideri ng information contained in t he probati on officer ’s repor t that was not admitt ed into e vidence during the revocati on proceedi ngs. He argues that he was denied the op portu nity to con fron t and c hallen ge the evide nce. M r. Rive rs argu es that a s a resu lt of the i mproper rel iance on the information in t he probati on officer ’s memorandum, he was sentenced to eighte en months of impri sonment for pos sessi ng heroin r ather t han the lesser punishm ent for simp le possession. M r. Rivers did no t cite any authority in support of this conte ntion. T his co urt rev iews de no vo a c laim o f den ial of d ue pr oces s at a

rev oca tion hea ring
. United S tates v. Barnh art , 980 F.2d 219, 222 (3d Cir. 199 2). During her argum ent, the prosecu tor stated that in determin ing wh ether M r. Rivers had po ssessed he roin with intent to d eliver it, the court should co nsider the fac t that Mr. Rive rs had neve r tested p ositive f or dru g use . The prose cutor a rgue d that th e cou rt could infer from this fact that M r. Rivers did no t possess the he roin for his pe rsonal use. M r. Rive rs’s co unse l objec ted to th e pro secu tor’s co mm ent. In his memorandum t o the court setting fort

h the court ’s sentencing options, the probati on officer

stated that

“Mr. Rivers has never te sted posi tive f or an il legal substanc e wh ile un der sup erv ised relea se.” The record shows, and Mr. Rivers conc edes, t hat the defense rec eived a copyof the probat

ion offi cer’s memorandum prior t o the revoc ation proceedings. In his ope ning statem ent at th e revo cation proc eedin gs, M r. Rive rs’s co unse l referre d to “th e doc um ents6

we r ece iv ed f

ro m pr oba ti on, ” an d r equ es te d that th e co ur t n otcon si der

“s ome investigati on regardi ng other matters ” that had no relations hip to whethe r Mr. Rivers had a contact with the pol ice, or whether he c ommitted a dr ug offense. Thus, it is undispu ted that M r. Rivers had notice that the prob ation officer’s

memo ra ndu m co nt ai ne d i nf or matio n tha t h e h ad not te st ed pos it

iv e f orhe ro in us e. He also had t

he opportuni ty to offer e vidence t o rebut t he facts concerni ng the negative heroin test r esult s. This court has previous ly held that “the Federal Rul es of Evidence do not apply

at a re vocati on hearing. ” United States v. Lee , 315 F.3d 206, 214 (3d Cir. 2003) (citing USSG § 6A1.3 and F ed. R. Evid. 1101(d)(3)). This court has also

conc luded that a d istrict cou rt can re ly on do cum ents n ot adm itted into e viden ce, if disclosed to the p arties “within a suf ficient time prior to the sen tencing he aring to affo rd them with a meani ngful opport unity to comment on it

at sentencing and, depending on the document, pr epare a r esponse or c ontest it. ” United States v. Nappi , 243 F.3d 758, 764 (3d Cir. 200 1). The proc edur al requ ireme nts fo r a revo cation proc eedin g are s et forth in Ru le 32.1( b)(2) o f the F edera l Rule s of C rimina l Proc edur e. Ru le 32.1 (b)(2) p rovid es that a person faced with a revocation proceeding is entitl ed to the following rights:

(A) written notic e of the al leged vi olati on; (B) disc losureof the evi dence agains t the pe rson; (C) an opportunity

to appear , pres ent evi dence, and ques tion any adve rse witness unle ss the c ourt determines t hat the interest of j usti ce does not require t he witness to appear ; and (D) notice of the person’s right to retain counsel or to request that co unse l be ap poin ted if th e pers on ca nno t obtain coun sel.Mr. Rivers was re present ed by couns el. He received wri tten not ice of the all eged violatio n of his sup ervise d relea se. H e had the op portu nity to cha llenge the fa cts set fo rth in the probation of

ficer ’s memorandum. The rec ord shows that each of his procedural rights w as fu lly respecte d in this matte r. The refor e, the d istrict cou rt did no t violate h is righ t to d ue p roc ess a t the r evo catio n pr oce edin gs. For the r easons set

forth above , we affirm the dist rict court’ s judgment and sentence .

TO THE C LERK:

Please fi le the foregoing opi nion.

/s/ Arthur L. Alarcón Circuit Judge DATED: