FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

MAY 31, 2007

THOMAS K. KAHN

CLERK

[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

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No. 05-16778

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D. C. Docket No. 97-00076-CR-4-RH-WCS

UNITED STATES OF AMERICA, 

Plaintiff-Appellee, 

versus 

TERRY LEE PRESLEY, 

Defendant-Appellant. 

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No. 05-16779

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D. C. Docket No. 05-00011-CR-4-RH-WCS

UNITED STATES OF AMERICA, 

Plaintiff-Appellee, 

versus 

TERRY LEE PRESLEY, 

Defendant-Appellant. 
2

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Appeals from the United States District Court

for the Northern District of Florida

_________________________

(May 31, 2007)

Before CARNES, WILSON and HILL, Circuit Judges.

CARNES, Circuit Judge:

Terry Lee Presley brings us two appeals, which we have consolidated. In

the first one he appeals the revocation of his supervised release. He contends that

under 18 U.S.C. § 3583(i) the district court lacked jurisdiction to revoke his

release after the term of it was over, because the allegations behind the warrant

and the summons that were issued to begin the revocation proceeding were not

sworn. In the other appeal, Presley challenges his conviction on one count of

possessing a firearm as a convicted felon in violation of 18 U.S.C. §§ 921(g)(1),

924(a)(2); he complains about the district court not telling the jury that it could

acquit him if his possession of the firearm was necessary. 
3

I.

 In 1998 Presley pleaded guilty to conspiring to possess marijuana with

intent to distribute and was sentenced to a twenty-four-month prison term to be

followed by a three-year period of supervised release. After completing his prison

time and starting the release period, Presley admitted in June of 2002 to three

violations of his supervised release conditions, which included testing positive for

marijuana. As a result of those violations, the district court sentenced him to an

additional month in prison and a new term of supervised release that was

scheduled to end on June 27, 2003. 

Presley did not make it through his new term of supervised release any

better than he did the first one. On May 7, 2003, his probation officer petitioned

the district court for a summons ordering Presley to appear before the court and

answer her allegations that he had violated the conditions of his new release by

again testing positive for marijuana use. The district court granted that petition,

and a summons issued on May 27, 2003. Then, on the same day the summons was

issued, Presley’s probation officer filed a petition alleging three more supervised

release violations, each relating to Presley’s May 15, 2003 arrest by the Florida

State University Police Department for resisting arrest, possessing cocaine and

marijuana with the intent to sell, and a few other things. This time, though, the
4

probation officer asked the district court to issue a warrant for Presley’s arrest

instead of a summons. The district court granted the petition and an arrest warrant

issued on June 2, 2003. 

The summons and the warrant were each aimed at getting Presley back

before the district court for a supervised release hearing. Both were issued before

Presley’s term of supervised release was over, but neither was served on him

before its expiration date. And, critical to framing the issues raised in this appeal,

both were based on allegations by the parole officer that were not sworn. 

Presley’s supervised release revocation hearing was conducted in

conjunction with the sentence hearing that followed his conviction on the felon-inpossession charge that forms the basis for the second half of this consolidated

appeal. It took place on November 29, 2005. After hearing evidence about the

alleged violations, the district court found Presley guilty of the single violation set

out in the summons and of two of the three in the warrant. The court revoked the

term of supervised release that otherwise had ended on June 27, 2003, and it

sentenced him to eighteen months imprisonment.

Before revoking Presley’s term of release and sentencing him, the court

raised the issue of whether it had jurisdiction to proceed with the revocation. It

pointed to the decision in United States v. Vargas-Amaya, 389 F.3d 901 (9th Cir.
5

2004), which had interpreted 18 U.S.C. § 3583(i) to mean that any warrant

providing a court with jurisdiction to revoke supervised release after the end of it

must be “based on sworn facts.” Id. at 907. After hearing from the parties on the

issue, the district court disagreed with the Ninth Circuit’s Vargas-Amaya decision.

The court concluded that under § 3583(i) the summons gave it jurisdiction to

consider the charge set out in that document, and the warrant gave it jurisdiction to

consider the three charges set out in that document, even though neither document

had been based on sworn allegations. 

The sole issue Presley raises about the revocation is whether the district

court had jurisdiction to do it, a matter we review de novo. See United States v.

Najjar, 283 F.3d 1306, 1307 (11th Cir. 2002) (per curiam). The governing statute

provides:

The power of the court to revoke a term of supervised release for

violation of a condition of supervised release . . . extends beyond the

expiration of the term of supervised release for any period reasonably

necessary for the adjudication of matters arising before its expiration

if, before its expiration, a warrant or summons has been issued on the

basis of an allegation of such a violation.

18 U.S.C. § 3583(i) (emphasis added). 

Presley contends that in the § 3583(i) reach back provision the words

“issued on the basis of an allegation of such a violation” mean that the warrant or
6

summons must be based not just on “an allegation of such a violation,” as the

statute says but on a sworn allegation. He wraps that proposition in the Fourth

Amendment’s Warrant Clause, see U.S. Const. Amend. IV (“no Warrants shall

issue, but upon probable cause, supported by Oath or affirmation . . . .”), and the

Vargas-Amaya decision, in which the Ninth Circuit agreed that “the plain meaning

of the term ‘warrant’ [in § 3583(i)] means a document . . . based upon probable

cause and supported by sworn facts.” Id. at 904. The government, in response,

cites the Fifth Circuit’s decision in United States v. Garcia-Avalino, 444 F.3d 444

(5th Cir.), cert. denied, ___ U.S. ___, 127 S. Ct. 141 (2006), which rejected the

Ninth Circuit’s position and instead held that “a warrant for the arrest of a

supervised releasee need not comply with the Oath or affirmation clause of the

Fourth Amendment.” Id. at 447. 

The split between the Fifth and Ninth Circuits over the revocation warrant

issue is interesting, but their disagreement does not extend to the question of

whether under the reach back provision a summons, as distinguished from a

warrant, must be based on allegations made under oath or affirmation. The Ninth

Circuit “express[ed] no opinion” on the summons question, Vargas-Amaya, 389

F.3d at 906 n.4, and the Fifth Circuit’s reasoning on the warrant issue makes it

clear that it would also hold that allegations bringing forth a summons need not be
7

sworn. No decisions we have seen hold that for § 3583(i) purposes a summons

must be based on sworn allegations. The Fourth Amendment, of course, says

nothing about haling someone into court with a summons, instead of taking them

into custody with a warrant. Nor is there anything in the statute itself or inherent

in the word “summons” that requires sworn statements for one to issue. 

Presley argues that various provisions in the federal criminal procedure

rules specify: (1) that a “summons” may be issued in lieu of a warrant, if

supported by a complaint or affidavits establishing probable cause, Fed. R. Crim.

P. 4(a); (2) that all complaints must be “made under oath,” Fed. R. Crim. P. 3; and

(3) that a summons must be made “in the same form as a warrant except that it

must require the defendant to appear before a magistrate judge at a stated time and

place,” Fed. R. Crim. P. 4(b)(2). These rules, he adds, are “constitutionally

compelled.” 

We do not think that they are. There is nothing in the Constitution, which

does not even mention summonses, that requires one to be based on sworn

allegations. As for the criminal rules provisions that Presley relies on, they are

concerned with haling into court a citizen whose liberty is otherwise unrestrained. 

What’s missing from Presley’s argument is an appreciation of the custody status of

one on supervised release. 
 In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir.1981) (en banc), the 1

Eleventh Circuit adopted as binding precedent all Fifth Circuit decisions handed down prior to

the close of business on September 30, 1981.

8

Requirements contained in the Federal Rules of Criminal Procedure that

impose procedures for taking someone into custody do not necessarily apply to

people who, like Presley, are under court supervision as part of a criminal

sentence. See United States v. Harrison, 461 F.2d 1127, 1130 (5th Cir. 1972).1

The reason they do not is that a convicted criminal on parole, as in Harrison, or

one who is on supervised release, as in this case, is already in “constructive

custody.” Id.; see also United States v. Brown, 117 F.3d 471, 475 (11th Cir. 1997)

(concluding that a “supervised releasee” is “in custody” for purposes of filing a

federal habeas petition under 28 U.S.C. § 2255). As a result, a summons issued to

a convicted criminal on supervised release, a form of custody, is not the same as a

summons issued to a citizen who is free of restrictions on his liberty and not in any

type of custody. See Harrison, 461 F.2d at 1130 (“[A] parole violator is not

technically ‘arrested’ as Rule 5(a) contemplates. Rather, . . . when arrested under

a parole violator warrant, he is merely placed in actual custody . . . .”). It is not the

same because the step from constructive custody to actual custody is shorter than

the leap from unsupervised freedom to actual custody. 

If Congress had wanted, it easily could have said that for purposes of 
9

supplying reach back jurisdiction under § 3583(i) a summons must be supported

by sworn facts. It didn’t say that. Instead, Congress wrote the statute so that the

only question is whether, before the expiration of Presley’s release period, a 

summons “has been issued on the basis of an allegation of such a violation” before

the term of supervised release expired. 18 U.S.C. § 3583(i). Here, the answer to

that question is yes. The summons was issued on May 27, 2003, and the period of

supervised release was not scheduled to end until a month later. The requirements

of the statute were met, giving the district court jurisdiction to revoke Presley’s

supervision even after the period of it had ended. 

Although the district court did find Presley guilty of the violation specified

in the summons, its authority to determine if his supervised release should be

revoked was not confined to the specifications of the summons. Instead, once

Presley was before the court it had the power to consider any violation of the terms

of the release and base a revocation on it. See § 3583(i) (conferring reach back

jurisdiction “for any period reasonably necessary for the adjudication of matters

arising before its expiration” (emphasis added)); see also United States v. Naranjo,

259 F.3d 379, 383 (5th Cir. 2001) (“[Section 3583(i)’s] plain language permits

revocation based on any violation of a condition of supervised release occurring

during the supervision term, even if not contained in a petition for revocation filed
10

during that term, so long as a warrant or summons was issued during that term on

the basis of an alleged violation.”). In other words, once the summons gave it

jurisdiction to decide whether to revoke Presley’s release, the court also could

consider the specifications contained in the warrant. § 3583(i). The defendant

must, of course, be given notice but Presley does not suggest that he lacked notice

of the charges. 

For these reasons, we will affirm the district court’s revocation of Presley’s

term of supervised release. 

II.

In Presley’s appeal from his felon-in-possession charge, he contends that the

district court erroneously refused to instruct the jury on the elements of his

necessity defense. We have said that a defendant is entitled to have the court

instruct the jury on his theory of the case, “as long as it has some basis in the

evidence and has legal support.” United States v. Nolan, 223 F.3d 1311, 1314

(11th Cir. 2000) (per curiam) (citing United States v. Grigsby, 111 F.3d 806, 814

(11th Cir. 1997)). 

We agree with the district court that Presley was not entitled to the necessity

instruction. His story is that he found his nephew and some other children in the

neighborhood playing with the firearm he was later charged with possessing, and
11

that taking the gun was necessary to protect them. Then, he says, he walked up the

street to his mother’s trailer home, which was five minutes away, and hid the gun

under her house before being arrested about thirty minutes later. Presley admitted

that he was carrying not one but two cell phones that day, which means that he had

not one but two ways of calling law enforcement or some other responsible party

to take possession of the firearm. Presley, therefore, had at least one reasonable

alternative to possessing the gun himself, and the necessity defense would not

apply unless he had none. See United States v. Deleveaux, 205 F.3d 1292, 1297

(11th Cir. 2000) (setting out the elements of a necessity defense, including “that

the defendant had no reasonable legal alternative to violating the law”). 

Accepting his story as true, the necessity defense could not apply and the district

court was not required to tell the jury otherwise. 

III.

The district court’s order revoking Presley’s supervised release in No. 05-

16778 is AFFIRMED, and the judgment embodying his conviction in No. 05-

16779 is also AFFIRMED.