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w . v i l l a no v a . e du/thir dc ir c uit_2014/23NOT PRECEDENTIAL UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

________________ No . 12

- 2316

________________
UNITED STATES OF AMERICA

v. DANIEL CASTELLI ,

Appellant

________________ Appeal from the United States District Court for the Eastern District of Pennsylvania ( Crim. No. 2

- 92

- 00132

- 06 ) District Judge: Honorable J. Curtis Joyner

________________ Submitted Under Third Circuit LAR 34.1(a)

November 19, 2013

Before: AMBRO and SMITH, Circuit Judges , and O’CONNOR,  Associate Justice (Ret. )

(Opinion filed: January 7, 2014 )

________________ OPINION

________________

 Honorable Sandra Day O’Connor, Associate Justice (Retired), Supreme Court of the United S tates, sitting by designation.2

AMBRO, Circuit Judge Appellant Daniel Castelli was charged with violating the terms of his supervised release. In preparation for his r evocation hearing, Castelli made various discovery requests, all of which were denied. The District Court sentenced Castelli to two years’ imprisonment, to be followed by a new term of supervised release. He appeals,

con tending that the Court’s denial of his discovery requests violated his right to due process, and that its sentence violated the Ex Post Facto Clause of the Constitution.
I. Background In September 1992, Castelli pled guilty to one count of conspirac y to possess

“ P2P ” with intent to manufacture methamphetamine, in violation of 21 U.S.C. § 846. The District Court sentenced Castelli to 240 months ’ imprisonment, ten years of supervised release, and a $10,000 criminal fine. He completed his custodial se ntence and, on September 18, 2009, began serving his term of supe rvised release. I n December 2011, the Probation Office filed a Violation of Supervised Release (“VOSR”) petition, contending that Castelli had violated his release condi tions by: A) committ ing a new drug offense (trafficking oxycodone) ; B) failing to make payments toward his fine ; C) f ailing to report for drug testing and failing to submit monthly supervision reports; D) submitting multiple drug

- positive urine specimens; and E) associating w ith convicted felons. T he Probation Office filed an amended violation of supervised release petition alleging two additional violations

– F) that Castelli was arrested for possessing two “ baggies ” of crack cocaine, and G) that he had submitted additional drug

- positive urine specimens. The3

District Court scheduled a hearing. In preparation for it, Castelli filed se veral motions for discovery. As noted, all were denied. At the conclusion of that hearing, the District Court found that Castelli had violat ed the conditions of his supervised release by engaging in drug trafficking, as charged in section A of the VOSR petition; failing to report for drug testing, as charged
i n section C of the petition; failing several drug tests, as charged in section D of t he petition and section G of the amended petition ; associating with felons, as charged in section E of the petition; and possessing crack cocaine, as charged in section F of the amended petition. The Court revoked Castelli’s existing term of supervised re lease, and sentenced him to a custodial term of 24 m onths to be followed by a seven

- year term of supervised release. Castelli filed a motion under Federal R ule of Criminal Procedure 35(a) alleging that the District Cour t’s order that he serve a seven

- yea r term of supervised release after completing his custodial sentence violated the Ex Post Facto Clause of the Constitution. The District Court denied the motion, and Castelli appeals. He reasserts his Ex Post Facto Clau se argument, and also contends that his due process rights were violated because he did not receive adequate discovery during the revocation proceedings

. 1
II. Discussion
W e review the District C ourt’s ruling on a discovery motion for abuse of
discretion. See U

nited States v. Liebert , 519 F.2 d 542, 547 (3d Cir. 1973). We exercise plenary review over the District C ourt’s determination that its imposition of a seven

- year

1 We have jurisdiction over this appeal under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a).4

term of supervised release to follow the 24

- month term of reimprisonment did not violate the Ex Post Facto Clause. See Un ited States v. Brady , 88 F.3d 225, 227 (3d Cir. 1996).
A. Discovery Motions
R evocation of supervised release proceedings are subject to only “minimum requirements of due process.” United States v. Maloney , 513 F.3d 350, 356 (3d Cir. 2008) ( internal quo tation omitted ) . With respect to discovery, due process and Federal Rule of Criminal Procedure 32.1 (which governs revocation of supervised release proceedings) require only that a defendant receive “disclosure of the evidence against him.” United States v. Derewal , 66 F.3d 52, 55 (3d Cir. 1995); see also Fed. R. Crim. P. 32.1(b)(2)(B). Here, the G overnment fully disclosed to Castelli the evidence it intended to use against him at the revocation hearing

. Sections A and E of the VOSR petition charged
C astelli with trafficking oxycodone and associating with felons. With regard to these sections , the G overnment provided Castelli with recordings and summaries of his intercepted telephone calls, copies of wiretap applications, copies of relevant surveillan ce reports, and copies of ox ycodone prescription records. It also relied on the testimony of Agent Christopher Galletti of the Pennsylvania Attorn ey General’s Office. Because
A gent Galletti was unavailable on the hearing dat e, the G overnment introduced G alletti’s previously v ideotaped deposition, in which Castelli and his counsel had participated

. Violations C and D of the VOSR petition and violation G of the amended petition charged Castelli with failing to report for certain drug tests and testing posi tive during other drug tests. The violation petitions informed Castelli of the dates of both the missed5

and positive tests. Additionally, Probation Officer Carmen Vasquez

- Ongay, who testified at the hearing, gave Castelli

– on the morning of the hearing

– a log of test results and a copy of the positive test reports. Castelli and his counsel had the opportunity to examin e these documents during the C ourt’s lunch recess, after which Officer Vasquez

- Ongay resumed her testimony. Violation F of the amended V OSR petition related to Castelli’s arrest for possession of crack cocai ne. Prior to the hearing, the G overnment provided him with a copy of the arrest report prepared by the arresting officer, Michael Policella. At the hearing, Officer Policella testifie d consistently with that report. Thus, the record shows that, in accord with Rule 32.1(b)(2), the G overnment timely provided Castelli with all the evidence against him relating to the alleged violations of supervised release. Castelli argues that he was entitled to “[r] eview the U.S. Probation Office’s file, receive a copy of his Pre

- Sentence Investigation Report . . ., and a more timely production of the Drug Test Results being used against him.” Appellant’s Br. at 17.
He has , however, failed to ide ntify any part of the Probation Office’s file that he was not permitted to examine in time to defend adequately against the violation petition. Insofar as he contends that he was entitled to review the entire Probation Office file, this argument is contra dicted by case law. See Derewal , 66 F.2d at 55 (n othing “require[s] automatic production of a probation officer’s entire file , even where the officer is a witness ”). Castelli, relying on Federal Rule of C riminal Procedure 32(e)(3), next argues that he was entitled to production of the presentence report that was prepared for his 19936

sentencing. As an initial matter, Rule 32 applies only to sentencing following a conviction by a verdict or plea, not to sentencing in connection with revocation proceedin gs. Unavailing is Castelli ’s argu ment that he sought the presentence report “so as to assess the legal basis for [his underlying] conviction as well as the possible consequences of sente ncing at the Revocation Hearing. ” Appellant’s Br. at 15 . The validit y of Castelli’s initial conviction, which had been final for nearly twenty years, was not at issue in the revocation proceedings. Similarly, Castelli did not need to review the presentence report to learn the classification of his initial offense and his criminal history category because, as the District Court correctly noted, it could take judic ial notice of that information. See Supp. App. 2. Finally, though Castelli did not receive the Drug Test Results until the day of the hearing, nothing in the rec ord indicates that the documents were lengthy or complex. Castelli and his counsel had over an hour to review the documents prior to cro ss - examining Probation Officer Vasquez

- Ongay , and at no time during the proceeding did Castelli complain t hat this was insufficient time. Accordingly, the District Court did not abuse its discretion in denying Castelli’s motions for discovery. Even if the District Court had erred in denying the discovery motions, Castelli is not entitled to relief on appeal. He cannot establish that he was prejudice d by the District Court’s order, especially in light of his own admission at the hearing that he had violated various conditions of his supervised release. See App. at 52

- 53; see also United States v.
Davis , 397 F.3d 173 , 17 8 (3d Cir. 2005) (p rejudice that must be shown to justify reversal for a discovery violation is a likelihood that verdict would have bee n different had
G overnment complied with discovery rules ).7

Ex Post Fac to Clause Castelli next argues that the Distric t Court sentence viol ates the Ex Post Facto Clause of the Constitution. U.S. C ONST . art. 1, § 9 , cl. 3 (“No .

. . ex post facto Law shall be passed”). When determining whether a violation of the Ex Post Facto Clause occurred, we consider whether a curren t law is more punitive than one in effect on the date of the offense. See, e.g., Peugh v. United States , 133 S. Ct. 2072, 2081 (2013). Though Castelli’s brief is less than clear, the violation he seems to be identifying is the District Court’s imposition of a second , seven - year term of supervised release after Castelli’s 24

- month reincarceration for violating the conditions of his first term of supervised release . At the time Castelli committed his prior offense, former Section 3583(e) of Title 18 gov er ned the penalties available on revocation of a supervised release

term . That section authorized a dis trict court to revoke a term of supervised release, and require the person to serve in prison all or part of the term of supervised release witho ut cred it for time previously served on postrelease supervision, if [the court] finds by a preponderance of the evidence that the person violated a condition of supervised release, pursuant to the provisions of the Federal Rules of Criminal Procedure that are applicable to probation revocation and to the provisions of applicable policy statements issued by the Sentencing Commission, e xcept that a person whose term is revoked under this paragraph may not be required to serve more than 3 years in prison if the offense for which the person was convicted was a Class B felony, or more than 2 years in prison if the offense was a Class C or D felony. The section was amended in 1994 to add a new subsection expressly permitting a district court to impose an additi onal term of supervised release after revoking the prior term of supervised release and sentencing a defendant to imprisonment: Supervised release following revocation.

– When a term of supervised release is revoked and the defendant is required to serve a term of imprisonment, the court8

may include a requirement that the defendant be placed on a term of supervised release after imprisonment. The length of such a term of supervised release shall not exceed the term of supervised release authorized by statute for the offense that resulted in the original term of supervised release, less any term of imprisonment that was imposed upon revocation of supervised release.
18 U.S.C. § 3583(h). Castelli’s argument appears to be that, by revoking his superv ised release and sentencing him to imprisonment followed by an additional term of supervised release, the District Court relied on 18 U.S.C. § 3583(h), a subsection that was enacted after Castelli’s initial offense and sentencing. Accordingly, he contends that the District Court’s sentence violates the Ex Post Facto Clause. This argument is foreclosed by Johnson v. United States , 529 U.S. 694 (2000). There the Supreme Court specifically held that the version of 18 U.S.C. § 3583(e) in effect at the time o f Castelli’s sentencing permitted a district court to impose a new term of supervised release after revocatio n and imprisonment for violating an initial term of supervised release. Id. at 712

- 13. Thus, Castelli’s argument that the District Court’s senten ce implicates ex post facto concerns fails. For these reasons, we affirm.