* After examining the briefs and appellate record, t his panel has determined

unanimously that oral argument would not materiallyassist the determination of this appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. The c ause therefore is ordered submitted without oral argument.

1 Hon. Frank J. Magill, Senior United States Circuit Judge, United States Court of Appeals for the Eighth Circuit, sitting bydesignation. 

## F I L E D United States Court of Appeals Tenth Circuit 

### AUG 12 1998 

### PATRICK FISHER Clerk PUBLISH
UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA, Plaintiff-Appellee, vs. LIN EDWARD DAVIS, Defendant-Appellant. No. 97-6188

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF OKLAHOMA

(D.C. No. 89-CR-224-T)

Submitted on the briefs: * Joseph L. Ruffin, Oklahoma City, Oklahoma for Defen dant-Appellant. Patrick M. Ryan, United States Attorney, and TeresaM. Black, Assistant United States Attorney, Oklahoma City, Oklahoma, for Plain tiff-Appellee.

Before ANDERSON , MAGILL , 1 and KELLY , Circuit Judges.2

KELLY , Circuit Judge.

Defendant-Appellant Lin Edward Davis appeals from t he district court’s revocation of twenty-four months of his three-year term of supervised release. On appeal, Mr. Davis contends that the initiation of r evocation proceedings by a probation officer exceeds the officer’s authority p ursuant to 18 U.S.C. § 3603 and the United States Constitution. Mr. Davis also arg ues the district court abused its discretion in sentencing him to the maximum term of imprisonment for violation of the terms of his supervised release. Our jurisd iction arises under 28 U.S.C. § 1291 and 18 U.S.C. § 3742, and we affirm. Background In 1989, Mr. Davis was convicted of several crimes in federal district court, and was sentenced in April 1990 to seventy months i n prison to be followed by three years of supervised release. He began his th ree-year term of supervised release in March 1996, and in February 1997 volunta rily agreed to modify the terms of his release to include a 120-day stay at t he Oklahoma Halfway House. Shortly thereafter, Mr. Davis’s probation officer n otified the district court that Mr. Davis had violated the terms of his superv ised release by failing to report to the Oklahoma Halfway House and by writing two wo rthless checks totaling $2,200. The officer also filed a “Petition for War rant or Summons for Offender Under Supervision” wherein he requested a warrant f or Mr. Davis’s arrest and3

revocation of Mr. Davis’s supervised release. The warrant issued, Mr. Davis was arrested, and a r evocation hearing was set. Mr. Davis moved to dismiss the petition, argu ing that the probation office’s practice of initiating revocation proceedings is wi thout statutory authorization and constitutes the unauthorized practice of law. The district court denied the motion, reasoning that the reporting and catch-all provisio ns of 18 U.S.C. § 3603 authorize a probation office to prepare and file petitions for revocation of supervised release and that a probation officer’s p reparation of such petitions requires no application of legal principles or tech niques. After a revocation hearing, the district court found Mr. Davis had vio lated the conditions of his release. In sentencing Mr. Davis to the statutory maximum of twenty-four months, the district court rejected the suggested r ange of twelve to eighteen months because it did not take into account the cir cumstances of his case, specifically Mr. Davis’s “complete[ ] fail[ure] [to avail himself of the benefits of the halfway house], . . . complete defiance of the orders of this Court, . . . [and] additional criminal conduct[.]” II R. at 96. Discussion 1. Probation Office’s Authority to File Petitions Requesti ng Initiation of Revocation Proceedings We review Mr. Davis’s statutory and constitutional challenge to the probation office’s authority to initiate revocation proceedings de novo. See4

United States v. Reyes-Castro , 13 F.3d 377, 378 (10th Cir. 1993). In essence, M r. Davis raises four arguments against the probation o ffice’s practice of filing petitions that seek warrants, summons, and revocati on proceedings: (1) filing such petitions exceeds the statutory authority granted t o probation officers in 18 U.S.C. § 3603; (2) the authority to file those petitions i nstead rests exclusively with the United States Attorney; (3) the district court impr operly delegates a judicial function by allowing probation officers to file suc h petitions; and (4) by filing such petitions with the district court, probation o fficers engage in the unauthorized practice of law. Though this issue is one of first impression among the circuit courts, several district courts have examined the matter, a nd only one has invalidated the practice. See United States v. Jones , 957 F. Supp. 1088, 1090-91 (E.D. Ark. 1997). For the reasons discussed below, we agree w ith the other three district courts examining this question that the probation o ffice’s practice of filing petitions seeking revocation of supervised release is proper. See United States v. Berger , 976 F. Supp. 947 (N.D. Cal. 1997); United States v. Wilson , 973 F. Supp. 1031 (W.D. Okla. 1997); United States v. Burnette , 980 F. Supp. 1429 (M.D. Ala. 1997). Three overarching principles inform the relationshi p between the district court, probation officer, and defendant, and they g uide our analysis. First, the5

district court and defendant have an ongoing relati onship which predates the initiation of revocation proceedings; the impositio n of a sentence which includes a term of supervised release requires it. See 18 U.S.C. § 3583(a), (e) (authorizing the district court to impose, terminate, extend, orrevoke a term of supervised release or modify its terms); Burnette , 980 F. Supp. at 1431; Wilson , 973 F. Supp. at 1032. Second, the probation officer must mainta in contact with the defendant to ensure that the defendant complies with the term s and conditions of his supervised release. See 18 U.S.C. § 3603(1)-(3). In fact, he is by statut e “responsible for the supervision of any probationeror a person on supervised release who is . . . within the judicial district[. ]” 18 U.S.C. § 3603(4). Third, and most important, the probation officer se rves as “an investigative and supervisory ‘arm of the court[.]’” Burnette , 980 F. Supp. at 1433 (quoting United States v. Johnson , 935 F.2d 47, 49 (4th Cir.), cert. denied , 502 U.S. 991 (1991)). The probation officer is appointed and may be removed by the district court, see 18 U.S.C. § 3602(a), and, in addition to fulfillin g the enumerated requirements imposed by Congress in 18 U.S.C. § 360 3, performs “any other duty that the court may designate,” 18 U.S.C. § 3603(10) , subject, of course, to constitutional restraints. Because of the “close w orking relationship between the probation officer and the sentencing court,” the pr obation officer may communicate ex parte with the district court, see United States v. Stanphill , —6

F.3d —, 1998 WL 327200, at *3 n.1 (10th Cir. June 2 2, 1998); Johnson , 935 F.2d at 49, and is entitled to absolute immunity from su it in the performance of his or her judicially-related functions. See Tripati v. INS , 784 F.2d 345, 348 (10th Cir. 1986), cert. denied, 484 U.S. 1028 (1988). As a pr actical matter, then, the probation officer serves as a liaison between the s entencing court, which has supervisory power over the defendant’s term of supe rvised release, and the defendant, who must comply with the conditions of h is supervised release or run the risk of revocation. With the unique role of th e probation officer in mind, we turn to Mr. Davis’s contentions. As to Mr. Davis’s argument that 18 U.S.C. § 3603 do es not provide probation officers the authority to file petitions seeking revocation, we note that the statute requires probation officers to “report the conduct and condition [of a person on supervised release] to the sentencing cou rt” 18 U.S.C. § 3603(2). Though Mr. Davis argues that filing petitions far e xceeds reporting, see Aplt. Brief at 8, we do not agree. The “petition” which Mr. Davis challenges is in reality a form filled out by the probation officer and submitted to the sentencing court in which the officer lists the alleged violat ions and recommends what action, if any, should be taken. See I R. docs. 143, 144; see also Burnette , 980 F. Supp. at 1433; Wilson , 973 F. Supp. at 1033. In fact, the “petition” is not at all unlike the other reporting forms it accompanies in the monograph Supervision of7

Federal Offenders , which is published by the Probation and Pretrial Services Division of the Administrative Office of the United States Courts. See I R. doc. 151 exh. a. As a practical matter, the petition is simply a means by which the probation officer conveys information about the def endant to the sentencing court; in other words, it is a report, and the prob ation officer is clearly empowered to so report under 18 U.S.C. § 3603(2). See Berger , 976 F. Supp at 948-49; USSG § 7B1.2 p.s.. Moreover, even if we we re to find filing such a petition was not “reporting” as authorized by the s tatute, the catch-all provision of section 3603 would encompass the probation officer’ s actions. See 18 U.S.C. § 3603(10) (“A probation officer shall perform any other duty that the court may designate.”). Mr. Davis, however, asserts that if § 3603(10) is the root of the probation officer’s authority to file a petition to revoke supervised release, the sentencing court improperly delegates a judicial function to anon-judicial officer in violation of Article III. See, e.g. , United States v. Mohammad , 53 F.3d 1426, 1438-39 (7th Cir. 1995) (involving delegation of authority to es tablish restitution schedule); United States v. Johnson , 48 F.3d 806, 809 (4th Cir. 1995) (same). We disa gree. The form itself is illustrative; by checking the ap propriate boxes on the form, the probation officer simply recommends to the sentenci ng court action he believes the district court should take. The form, however, also contains a separate section8

to be completed by the sentencing court, indicating what action, if any, it wishes to take. See I R. docs. 143, 144. Thus, the sentencing court, not the probation officer, ultimately determines whether revocation p roceedings will be initiated. This reservation of judicial power is completely co nsistent with the sentencing court’s “primary responsibility for such proceeding s.” Berger , 976 F. Supp. at 949 (citing United States v. Feinberg , 631 F.2d 388, 391 (5th Cir. 1980)); see Fed. R. Crim. P. 32.1. Accordingly, the sentencing court at most delegates to probation officers the power to recommend revocatio n proceedings, and in light of probation officers’ duty to report, the districtcourt may be delegating no authority at all. Considering the sentencing court ’s reliance on the probation officer’s supervisory and investigative functions and retention of discretionary power to invoke revocation proceedings, no improperdelegation of judicial power

occurs. Mr. Davis similarly argues that by filing petitions to revoke supervised release probation officers usurp the U.S. Attorney’ s authority and discretion to file an information or seek an indictment. See Jones , 957 F. Supp. at 1091. We disagree. Probation revocation proceedings are notcriminal proceedings, see Minnesota v. Murphy , 465 U.S. 420, 435-36 n.7 (1984), and “there is no requirement that revocation proceedings be initiate d by a particular officer of the government, or by any officer.” Feinberg , 631 F. 2d at 390-91; see Berger , 976 F.9

Supp. at 949-50; Wilson , 973 F. Supp. at 1032-33. The sentencing court may initiate such proceedings sua sponte based on information acquired from any source, including the probation officer who, as we noted earlier, is primarily responsible for acquiring and presenting such information to the sentencing court.
See Feinberg , 631 F.2d at 391. Moreover, because of the ongoin g relationship between the sentencing court and the defendant created by the imposition of a term of supervised release, placing the sole discre tion to initiate a revocation proceeding with the U.S. Attorney “would be tantamo unt to abdicating the Judiciary’s sentencing responsibility to the Execut ive.” Berger , 976 F. Supp. at 950. Though the U.S. Attorney retains discretion t o file new criminal charges against the defendant arising from the defendant’s violation of conditions of release which are criminal in nature, we reject Mr. Davis’s view of the U.S. Attorney as the only officer who may initiate revoc ation of supervised release. Finally, probation officers do not engage in the un authorized practice of law by filing petitions to initiate revocation proc eedings. But see Jones , 957 F. Supp. at 1091. “[T]he probation officer is doing n o more than discharging [his] responsibility” to the sentencing court as required by 18 U.S.C. § 3603, the district court retains discretion to reject or acce pt the probation officer’s recommendations, and either party may appeal from asentencing court’s adoption of the probation officer’s recommendation. United States v. Montoya , 24 F.3d10

1248, 1249 (10th Cir. 1994). 2. Sentencing Court’s Imposition of the Maximum Term of Impr isonment for

Violation of Terms of Supervised Release Mr. Davis also argues the district court abused its discretion in sentencing him to the maximum term of imprisonment for violati ons of the terms of his supervised release. We generally review Mr. Davis’ s sentence to determine whether the district court’s sentence is “reasoned and reasonable,” United States
v. Lee , 957 F.2d 770, 774 (10th Cir. 1992), but review th e district court’s findings of fact for clear error and its interpretation and application of the Sentencing Guidelines de novo. See United States v. McAlpine , 32 F.3d 484, 487-88 (10th Cir.), cert. denied , 513 U.S. 1031 (1994). Mr. Davis’s arguments relating to the district court’s decision to impose the maximum sentence focus on the district court’s deci sion to “depart” from the recommended sentence without notice and a hearing, an argument which is foreclosed by United States v. Burdex , 100 F.3d 882, 885 (10th Cir. 1996), cert. denied , 117 S. Ct. 1283 (1997), and United States v. Hurs t , 78 F.3d 482, 483 (10th Cir. 1996). Mr. Davis urges reconsideration, but as a panel of the larger court we may not overrule circuit precedent. See United States v. Walling , 936 F.2d 469, 472 (10th Cir. 1991). Moreover, it is cl ear from the district court’s colloquy prior to sentencing that the factors liste d in 18 U.S.C. § 3553 were considered, and the record supports the district co urt’s sentence.11

AFFIRMED.