United States Court of Appeals

For the Eighth Circuit

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No. 14-1460

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United States of America

lllllllllllllllllllll Plaintiff - Appellee

v.

Yusuf John Jones, also known as John Jones Yusuf

lllllllllllllllllllll Defendant - Appellant

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 Appeal from United States District Court 

for the Southern District of Iowa - Des Moines

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 Submitted: September 12, 2014

 Filed: October 21, 2014

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Before WOLLMAN, LOKEN, and MURPHY, Circuit Judges.

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MURPHY, Circuit Judge.

YusufJones appeals the sentence imposed bythe district court after revocation

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of his fourth period of supervised release. Jones argues that the district court erred

by sentencing him on conduct not included in the written violation report he received

The Honorable Stephanie M. Rose, United States District Judge for the

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Southern District of Iowa.
prior to his revocation hearing. Jones also appeals the substantive reasonableness of

his sentence. We affirm.

Jones pled guilty in 2010 to possession of a firearm by an unlawful user of

controlled substances in violation of 18 U.S.C. §§ 922(g)(3) and 924(a)(2). The

district court sentenced him to 36 months imprisonment and 36 months supervised

release. Jones agreed to a modification of release which required him to participate

in a residential reentry program. The probation office petitioned for revocation after

only one month of release because of Jones’ violation of conditions of his reentry

program. Jones stipulated to the violations, and the district court revoked his release,

sentencing him to 30 days imprisonment and 35 months supervised release. 

His second period of supervised release began on August 22, 2012; within a

week he tested positive for substance abuse. Jones was thereafter removed from the

reentry program for making false statements, disobeying orders, and failing to

maintain employment. The district court revoked his release and sentenced him to

5 months imprisonment and 25 months supervised release. His third period of

supervised release began on February 26, 2013. Jones subsequently failed to abide

by his electronic monitoring agreement and was charged with an assault and

associating with substance abusers. The district court again revoked his release and

sentenced him to 7 months imprisonment and 24 months supervised release. 

On November 7, 2013 Jones again entered supervised release, but two months

later the probation office filed a written violation report detailing his failure "to

comply with rules of electronic monitoring." Jones was accused of a curfew violation

for failing to return to his residence at the required time and of tampering with his

ankle monitoring device. The district court held another revocation hearing on

February 12, 2014 at which Jones stipulated to the curfew violation. The district

court raised some additional behavioral problems which had been discussed at a prior

hearing but were not mentioned in the latest report. The court noted that Jones had

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assaulted a police officer and had attempted to cover up his curfew violation by

falsely reporting that he had been kidnapped.

The district court asked Jones if he wanted to testify or to cross examine the

probation officers who were prepared to testify on the additional violations. Jones

declined the opportunity, and defense counsel requested a sentence of 19 months

without another period of supervised release. After finding that Jones had violated

his release by his curfew violation and other uncontroverted violations, the court

calculated his guideline range at 5 to 11 months on the curfew violation and 8 to 14

months on the others. The district court then sentenced Jones to 18 months

imprisonment. 

Jones appeals, arguing that the district court impermissibly sentenced him on

conduct not included in the written violation report he received prior to the revocation

hearing. He also asserts that his 18 month sentence is substantively unreasonable.

 

Jones contends that the district court violated his right to receive "written

notice of the alleged violation" by sentencing him on conduct not alleged in the

written violation report. Fed. R. Crim. P. 32.1(b)(2)(A). Since Jones had not raised

this objection before the district court, the question is whether he forfeited or waived

the issue. In United States v. Olano, the Supreme Court distinguished forfeiture, the

"failure to make the timely assertion of a right" from waiver, the "intentional

relinquishment or abandonment of a known right." 507 U.S. 725, 733 (1993). While

forfeited claims are reviewed for plain error, waived claims are unreviewable on

appeal. United States v. Gutierrez, 130 F.3d 330, 332 (8th Cir. 1997). 

A defendant may waive the right to receive written notice of an alleged

violation prior to a revocation hearing. See United States v. Taylor, 747 F.3d 516,

519 (8th Cir. 2014). An effective waiver must be knowing and voluntary. Id. A

knowing and voluntary waiver in the context of a revocation hearing does not require

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particular words or an intensive colloquy in contrast to the requirements of Rule 11

of the Federal Rules of Criminal Procedure. See United States v. Correa-Torres, 326

F.3d 18, 23 (1st Cir. 2003) (collecting cases). We look instead to the totality of

circumstances, paying particular attention to the defendant's understanding of the

right to written notice and how it might be waived. Id. 

We find no support for the government's contention thatJones waived his right

to receive written notice of the additional violations. Here, the district court never

found thatJones waived such a right, and Jones could not have knowingly waived his

right to written notice without knowledge of that right. Id. at 24. Nevertheless, Jones

declined the district court's invitation to testify or cross examine witnesses. As a

result, he waived his rights to "make a statement and present any information in

mitigation" under Rule 32.1(b)(2)(E) and to question witnesses under Rule

32.1(b)(2)(C). Although Jones had the right to written notice under Rule

32.1(b)(2)(A), without a knowing and voluntary waiver of that right he simply

forfeited it. 

We review forfeited objections for plain error. Under plain error review, we

will reverse the district court only if the error prejudiced the substantial rights of the

defendant, and would result in a miscarriage of justice. United States v. Jewell, 614

F.3d 911, 917 (8th Cir. 2010). Although Jones did not receive written notice of the

additional violations prior to the revocation hearing, that error did not affect his

substantial rights "by prejudicially influenc[ing] the outcome of the district court

proceedings." United States v. Bossany, 678 F.3d 603, 606 (8th Cir. 2012). Jones

suggests that the lack of written notice deprived him of the opportunity to contest the

additional violations, but he fails to explain what he would have done differently if

such notice had been given. United States v. Sistrunk, 612 F.3d 988, 992 (8th Cir.

2010). He does not claim that written notice of the additional violations would have

led him to testify and challenge the charges or to cross examine witnesses. Nor did

he attempt to reopen the hearing to introduce further evidence. Id. Although defense

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counsel recommended a sentence of 19 months imprisonment, the district court

sentenced Jones to only 18 months. Thus, even if Jones had not received written

notice of the additional violations prior to the hearing, he was not prejudiced. We

therefore deny Jones' request to remand for resentencing.

Jones also appeals his sentence as substantively unreasonable. We review the

reasonableness of a revocation sentence under the same abuse of discretion standard

as initial sentencing decisions. United States v. Goodon, 742 F.3d 373, 376 (8th Cir.

2014). A district court abuses its discretion if "it fails to consider a relevant and

significant factor, gives significant weight to an irrelevant or improper factor, or

considers the appropriate factors but commits a clear error of judgment in weighing

those factors." United States v. Kreitinger, 576 F.3d 500, 503 (8th Cir 2009). Jones

argues that the district court abused its discretion by sentencing him to 18 months for

a "low-grade, de minimis" curfew violation. We disagree. The district court did not

sentence Jones on the curfew violation alone. Rather, it found by a preponderance

of evidence that Jones committed additional violations by filing a false police report

and assaulting a probation officer. We also decline to consider the curfew violation

a de minimis offense on the facts of this case since Jones has violated four

consecutive periods of release in the past two years. 

Given the frequency of these violations, his lack of attention to the conditions

of release, and the failure of lesser sentences to deter him, his 18 month sentence is

substantively reasonable. See United States v. Beran, 751 F.3d 872, 875 (8th Cir.

2014). For these reasons the district court did not abuse its discretion in sentencing

Jones. 

The judgment of the district court is affirmed.

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