NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

_____________

No. 15-1762

_____________

UNITED STATES OF AMERICA

v.

MARCUS POUGH,

 Appellant 

__________________________

Appeal from the United States District Court

for the Eastern District of Pennsylvania

(No. 2:06-cr-00686-001)

District Judge: Honorable Michael M. Baylson

Submitted Pursuant to Third Circuit LAR 34.1(a)

January 20, 2016

Before: FISHER, CHAGARES and COWEN, Circuit Judges.

(Filed: January 22, 2016)

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OPINION*

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CHAGARES, Circuit Judge.

Defendant Marcus Pough appeals the District Court’s judgment revoking his term 

of supervised release and resulting sentence of sixty months of imprisonment. Pough 

 

* This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not 

constitute binding precedent.
2

raises two primary issues: (1) whether the District Court erred when it construed his state 

court testimony as an admission of a violation of his supervised release term; and (2) 

whether his revocation sentence is procedurally unreasonable. For the reasons that 

follow, we will vacate the judgment and remand to the District Court. 

I.

We write solely for the parties and therefore recite only the facts necessary to our 

disposition. In 2008, after pleading guilty to a two-count indictment,1 Pough was 

sentenced to a term of 60 months of imprisonment to be followed by five years of 

supervised release. Pough began his supervised release on July 1, 2011. His term of 

supervised release included a standard condition that Pough “shall not commit another 

Federal, state or local crime and shall not illegally possess a controlled substance.” See

Appendix (“App.”) 27. 

On June 27, 2012, Pough was arrested in Philadelphia and charged with 

conspiracy, murder, and related offenses in the Philadelphia Court of Common Pleas.

The state charges were based on allegations that Pough was the getaway driver in a 

murder-for-hire plot. The next day, on June 28, 2012, the United States Probation Office 

filed a petition charging Pough with violating his federal supervised release for his 

 

1 Pough pleaded guilty to one count of possession with intent to distribute 5 grams or 

more of cocaine base, in violation of 21 U.S.C. § 841(a)(1), and one count of possession 

of a firearm in furtherance of a drug trafficking crime, in violation of 18 U.S.C. § 924(c). 
3

alleged role in the murder-for-hire.2 The petition was held pending resolution of the state 

court case. 

In the state case, the prosecution’s primary evidence against Pough was his

written, uncounseled confession made on June 27, 2012, at the police station. His signed 

statement admitted that he was offered $10,000 to act as the getaway driver for two 

assailants who shot and killed a man. Pough moved to suppress his statement on Fifth 

and Fourteenth Amendment grounds, and the state court held multiple suppression 

hearings on this issue. Pough testified that he was not actually involved in the murder 

conspiracy, did not know who shot and killed the victim, and did not drive the getaway 

vehicle. Instead, Pough claimed that he provided the written statement because the police 

had promised him immunity and witness protection. 

At the conclusion of the suppression hearings, the state court made a factual 

finding that Pough, without having been Mirandized and without the assistance of 

counsel, was initially questioned on the street from 2:50 p.m. until 3:30 p.m., then 

searched and transported to the police station, and then questioned “in a custodial 

environment” at the police station from approximately 4:15 p.m. to 11:00 p.m. See App. 

149-50, 155, 157. Yet, it was not until after 6:54 p.m. that detectives first gave Pough his 

Miranda warnings. Shortly after he was Mirandized, Pough provided the written 

statement. See id. at 155. The state court indicated that it was “incredible that no 

 

2 Pough had one prior violation of his supervised release term, which resulted in a 

sentence of 60 days of home confinement with electronic monitoring. All other 

conditions of his supervised release term remained in effect. 
4

Detective had any notes with regard to this roughly three hour period of interaction [prior 

to the Miranda warnings] and that no paperwork was generated.” Id. at 150. The state 

court concluded that Pough’s written statement was involuntary and “induced by 

improper promises of leniency that were designed to induce Pough into waiving his 

constitutional rights and to confess to his involvement in the murders at issue,” in 

violation of the Fifth and Fourteenth Amendments of the United States Constitution. 

App. 161. Accordingly, the state court suppressed the statement. With the confession 

excluded, the prosecution withdrew the charges against Pough. 

After the state charges were withdrawn, the District Court held two revocation 

hearings on the violation petition before concluding that Pough had committed the 

violation. In so finding, the District Court explicitly “rel[ied] solely on Defendant’s 

testimony during the suppression hearing to find a violation.”3 App. 13 (emphasis 

added). Specifically, the District Court considered Pough’s testimony during his cross 

examination at the December 13, 2013, suppression hearing: 

Q: You’ve had a chance to look at your statement again since 

the last hearing, right? Take a look at your confession again? 

A: Yes. 

Q: And when you mentioned that thing about how you were 

talking about getting your van back, you said specifically I’ll 

never get that car back, will I; is that right? 

 

3 The District Court indicated that it was not considering Pough’s written confession in its 

analysis. Thus, the District Court did not rule on whether his confession, which the state 

court deemed an involuntary confession in violation of the Fifth and Fourteenth 

Amendments, was admissible in a federal revocation proceeding. See App. 13. 
5

A: Yes. 

Q: And you knew that you were confessing and implicating 

the shooters on the homicide, right? 

A: Yes. 

Q: That you were only the getaway driver. You never even 

held the gun, right?

A: Never what?

Q: You’re the getaway driver only, right? Meaning you 

didn’t shoot the gun that day that killed Damon Stafford, 

right?

A: Yes. 

Q: You identified Hak and New-Man as the shooters, not 

you, correct? 

A: Yes. 

****

Q: Just so that we’re clear, you’re telling Her Honor that you 

legitimately thought, despite being the driver in a murder for 

hire, that you were not going to be prosecuted for that?

A. Yes. 

App. 138-39. 

Based on that testimony, as well as the failure of Pough’s attorney to conduct 

redirect and the failure of Pough to deny “the veracity of his statement,” see App. 90-93, 

the District Court found that Pough had made an incriminating statement, which “clearly 

established that he was involved as a get-away driver after a murder took place and that 

this conduct was in violation of the terms of his supervised release.” App. 16. 
6

Accordingly, the District Court revoked his supervised release. Although a “dispositional 

report” by the United States Probation Office identified the advisory sentencing range as 

30-37 months of imprisonment under the United States Sentencing Guidelines (the 

“Guidelines”), the District Court sentenced Pough to 60 months of imprisonment. Pough

timely appealed. 

II.

The District Court had jurisdiction pursuant to 18 U.S.C. §§ 3231 and 3583(a),

and we have jurisdiction pursuant to 28 U.S.C. § 1291 to review a final decision of a 

district court. A district court may “revoke a term of supervised release, and require the 

defendant to serve in prison all or part of the term of supervised release authorized by 

statute . . . if the court . . . finds by a preponderance of the evidence that the defendant 

violated a condition of supervised release. . . .” 18 U.S.C. § 3583(e)(3). We review a 

district court decision to revoke supervised release for abuse of discretion. United States 

v. Maloney, 513 F.3d 350, 354 (3d Cir. 2008). Factual findings supporting that decision 

are reviewed for clear error; legal issues are subject to de novo review. Id.

III.

Although the parties agree that the District Court could consider Pough’s state 

court testimony for purposes of his revocation proceeding,

4

the parties disagree over 

 

4

“[A] defendant charged with violating a release condition, unlike a defendant charged 

with violating a statute, does not enjoy the full panoply of rights normally available in a 

criminal proceeding.” United States v. Loy, 237 F.3d 251, 260 (3d Cir. 2001) (quotation 

marks omitted). For example, to safeguard a defendant’s right against self-incrimination, 

a defendant’s testimony in support of a motion to suppress evidence may not be used 

against him at a subsequent trial, see Simmons v. United States, 390 U.S. 377, 393-94 
7

whether the testimony is a judicial admission to be reviewed de novo or a factual finding 

to be reviewed for clear error. We do not need to resolve this question because we hold 

that, even under the more deferential clear error standard of review, the District Court 

erred. 

A factual finding is “‘clearly erroneous’ when although there is evidence to 

support it, the reviewing court on the entire evidence is left with the definite and firm 

conviction that a mistake has been committed.” Anderson v. City of Bessemer City, 470 

U.S. 564, 573 (1985). “If the district court’s account of the evidence is plausible in light 

of the record viewed in its entirety, the court of appeals may not reverse it even though 

convinced that had it been sitting as the trier of fact, it would have weighed the evidence 

differently.” Id. at 574. See also United States v. Stewart, 452 F.3d 266, 273 (3d Cir. 

2006) (same). 

Based on our review of the limited record that the District Court relied upon, we 

conclude the District Court committed clear error. The District Court relied “solely” on 

Pough’s testimony during the December 13, 2013, suppression testimony. App. 13. This 

testimony, however, does not provide the minimum evidentiary support necessary for 

finding a violation by a preponderance of the evidence. The line of questioning initiated 

by the prosecutor clearly relates to Pough’s written statement. The prosecutor’s 

questions focused on what Pough told police and what Pough understood to be the 

implications of his confession. See, e.g., App. 138 (“And when you mentioned that thing 

 

(1968), but a defendant has no such right against self-incrimination in a revocation 

proceeding, see Loy, 237 F.3d at 260. 
8

about how you were talking about getting your van back, you said specifically I’ll never 

get that car back, will I; is that right?”) (emphases added). After these types of questions, 

the prosecutor asked, “Just so that we’re clear, you’re telling Her Honor that you 

legitimately thought, despite being the driver in a murder for hire, that you were not 

going to be prosecuted for that?” App. 139. But this question, and similar questions

asked by the prosecution, do not provide the minimum evidentiary support necessary for 

the supervised release violation, when considered in the context of Pough’s overall 

testimony. The clear import of Pough’s testimony at the December 13, 2013, hearing is 

that Pough provided the written statement to police because he believed that, if he were to 

confess, he would not be prosecuted. Nor does the failure of Pough’s attorney to conduct 

redirect, or Pough’s failure to affirmatively deny “the veracity of his statement” change 

this analysis. Indeed, at an earlier hearing held on October 28, 2013, Pough testified that 

he did not drive the getaway car, did not know who the shooters were, but had confessed 

in his written statement because prosecutors offered him immunity. See App. 120. 

Thus, we are “left with the definite and firm conviction that a mistake [was]

committed” by the District Court when it construed Pough’s testimony at the suppression 

hearing as an incriminating statement. See Anderson, 470 U.S. at 573. Therefore, the 

District Court’s decision revoking supervised release, based solely on Pough’s isolated 

testimony at the state suppression hearing, was inconsistent with the exercise of sound 

discretion. 
9

We will vacate the District Court’s judgment and remand for further development 

of the record. We note that at Pough’s revocation hearing, the District Court declined, 

despite requests by both parties, to develop an independent record of the violation. On 

remand, the District Court may wish to hear relevant testimony, and it may wish to 

decide, in the first instance, the admissibility of Pough’s written statement in a federal 

revocation hearing. 

Accordingly, we need not reach Pough’s second argument on appeal — that his 

sentence was procedurally unreasonable.5

IV.

For the foregoing reasons, we will vacate the District Court’s judgment and 

remand for further proceedings consistent with this opinion. 

 

5 Pough argues that the District Court committed plain error when it did not calculate the 

advisory Guidelines sentencing range, and failed to provide reasons, pursuant to 18 

U.S.C. § 3553(a), for its upward variance. In imposing its sentence, the District Court 

stated, “[a]nd that given the seriousness of the violation that the sentence is 60 months in 

custody of the Bureau of Prisons, so I’m going to make that the — impose that sentence.” 

App. 100-01. We need not address this second issue on appeal, as we hold that the

District Court committed clear error when it relied solely on Pough’s suppression 

testimony to conclude that Pough violated his supervised release term. But we note that a 

sentencing court, during a revocation hearing, must consider certain factors enumerated 

in 18 U.S.C. § 3553(a), pursuant to 18 U.S.C. § 3583(c). See United States v. Clark, 726 

F.3d 496, 500-01 (3d Cir. 2013).