NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

________________

No. 16-3917

________________

UNITED STATES OF AMERICA

v.

JAMAAL L. MIKE,

Appellant

________________

On Appeal from the District Court

of the Virgin Islands

(D.C. Criminal No. 3-09-cr-00036-001) 

District Judge: Hon. Curtis V. Gomez

________________

Argued: December 14, 2017

Before: SMITH, Chief Judge, MCKEE, and SCIRICA, Circuit Judges

(Filed: November 27, 2018)

Brendan A. Hurson, Esq. [ARGUED]

Kia D. Sears, Esq.

Office of Federal Public Defender

1336 Beltjen Road

Suite 202, Tunick Building

St. Thomas, VI 00802

Omodare B. Jupiter, Esq.

Office of the Federal Public Defender

4094 Diamond Ruby

Suite 5

Christiansted, VI 00820

Counsel for Appellant
2

Meredith J. Edwards, Esq. [ARGUED]

David W. White, Esq.

Office of United States Attorney

5500 Veterans Drive, Suite 260

United States Courthouse

St. Thomas, VI 00802

Counsel for Appellee

________________

OPINION*

________________

SCIRICA, Circuit Judge

While on supervised release for a firearms conviction, Jamaal Mike shot an 

acquaintance. The District Court revoked his supervision and imposed a term of 18 

months’ imprisonment. Mike appeals, contending: the District Court (1) did not have 

jurisdiction under the delayed revocation provision, see 18 U.S.C. § 3583(i), to revoke his 

supervised release after the term had expired; (2) violated his due process rights; (3) ruled 

based on insufficient evidence; and, (4) erroneously concluded attempted murder and 

assault with a deadly weapon under Virgin Islands law qualify as “crimes of violence.” 

Because we conclude the District Court had jurisdiction and did not err, we will affirm.

I.

Mike was convicted of receipt of a firearm outside the state of residency on 

January 29, 2010. He was sentenced to 51 months’ imprisonment and a three-year term 

of supervised release that was set to expire on June 23, 2016. On May 23, 2016, while he 

 

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

constitute binding precedent.
3

was still on supervised release, Mike was arrested by Virgin Islands Police for attempted 

murder, assault, unauthorized possession of a firearm during the commission of a crime 

of violence, and unauthorized possession of a firearm. Those charges related to an 

altercation between Mike and Kadeem Barnes, during which Mike allegedly shot Barnes. 

Shortly after the shooting, Barnes repeatedly identified Mike as the shooter to a Virgin 

Islands police officer. 

A probation officer filed an unsworn memorandum with the District Court, which 

stated Barnes identified Mike as the man who shot him and noted Mike faced five 

charges. Probation attached an arrest warrant from the Superior Court of the Virgin 

Islands and an arrest “report” from the Virgin Islands Police Department, documenting 

Mike’s arrest. 

Based on the submission, the District Court signed an arrest warrant for Mike, 

stating he violated the condition that “[d]efendant shall not possess a firearm.” App. 76. 

Mike appeared before a Magistrate Judge for an initial appearance and was informed of 

the alleged violation. On June 24, 2016, after the expiration of Mike’s term of supervised 

release, the probation officer filed a second memorandum with the court, alleging Mike 

committed two “A” grade violations: commission of a “Federal, State, or Local crime,” 

and possession of a “firearm.” App. 77–78. Mike appeared before a Magistrate Judge, 

who concluded probable cause existed to find Mike violated those two conditions. 

Mike and the government then appeared before the District Court on August 18

for a revocation hearing, during which the government stated it was not pursuing the 

Grade A violations and moved to have probation amend the violations to include two 
4

Grade C violations. The government also stated it would not call Barnes as a witness. 

Almost a week later, probation amended the second memorandum to include the Grade C 

violations, and the District Court granted the amendment nunc pro tunc to the August 18

revocation hearing. 

During Mike’s scheduled September 14th revocation hearing, the District Court 

announced that, despite the government’s position, Mike faced four violations including 

the original two Grade A violations. The revocation hearing was continued to provide 

Mike adequate notice of the violations. During the final revocation hearing 

approximately one month later, the Virgin Islands police officer who investigated the 

shooting testified Barnes identified Mike as the shooter. Barnes refused to identify Mike 

as the perpetrator but did testify he saw Mike at the store on the day of the shooting. 

The District Court determined, by a preponderance of the evidence, that Mike shot 

Barnes and concluded Mike violated a federal, state, or local law, possessed a firearm, 

and failed to advise probation within 72 hours of his questioning or arrest. The District 

Court imposed a sentence of 18 months’ imprisonment and 400 hours of community 

service. Mike appealed. 

II.1

Mike challenges the revocation of his supervised release on four grounds. We 

consider each in turn.

A. 

 

1 The District Court’s jurisdiction is contested but would arise under 48 U.S.C. 

§ 1612, 18 U.S.C. § 3583, and 18 U.S.C. § 3231. We have jurisdiction under 28 U.S.C. 

§ 1291 and 18 U.S.C. § 3742(a)(1) and (a)(2). 
5

Mike raises two issues concerning the District Court’s jurisdiction under 18 U.S.C. 

§ 3583(i). We review the District Court’s exercise of jurisdiction de novo. See United 

States v. Merlino, 785 F.3d 79, 82 (3d Cir. 2015). Under section 3583(i), a court’s 

jurisdiction over supervised release violations extends beyond the term of supervised 

release if certain statutory requirements are met:

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). Mike first contends the arrest warrant, issued before the expiration 

of his supervised release term, did not trigger extended jurisdiction under section 3583(i) 

because it was not supported by oath or affirmation. Second, he asserts the violations 

were improperly amended after the expiration of his supervised release term. 

As to the oath or affirmation requirement, we need not decide whether an arrest 

warrant needs to be supported by oath or affirmation to trigger extended jurisdiction 

under section 3583(i).2 The federal arrest warrant was issued based on the first 

revocation petition, which incorporated the Virgin Islands arrest warrant and the affidavit 

 

2 The United States Courts of Appeals for the First, Fifth, and Eighth Circuits have 

held a warrant for arrest of an individual on supervised release does not require support 

by oath or affirmation. See United States v. Collazo-Castro, 660 F.3d 516, 522 (1st Cir. 

2011); United States v. Garcia-Avalino, 444 F.3d 444, 447–48 (5th Cir. 2006); United 

States v. Hacker, 450 F.3d 808, 816 (8th Cir. 2006); see also United States v. Madden, 

515 F.3d 601, 608 (6th Cir. 2008) (holding that it was not plain error where a warrant for 

violation of supervised release was based on an unsworn information). In contrast, the 

Ninth Circuit requires that a warrant for section 3583(i) be supported by oath or 

affirmation. United States v. Vargas-Amaya, 389 F.3d 901, 907 (9th Cir. 2004).
6

that supported the arrest warrant. The supporting affidavit was sworn to by a detective 

employed by the Virgin Islands Police Department. Because the packet included an 

affidavit in this case, the warrant validly triggered extended jurisdiction. 

Having concluded the warrant was sufficient to extend jurisdiction, we must now 

decide whether the District Court allowed improper amendment of the violations after 

expiration of Mike’s supervised release.3 It did not.

The Second Circuit addressed the issue of whether a court’s revocation authority is 

limited to the violation alleged prior to the expiration of supervised release in United 

States v. Edwards, 834 F.3d 180 (2d Cir. 2016), and concluded it was not. See id. at 193 

(exercising de novo review). In Edwards, the defendant argued that “such a violation” in 

section 3583(i) was ambiguous because it could be interpreted as referring back to the 

first clause and requiring the charged violation and the proved violation be the same. Id. 

Rejecting that reading of the statute, the Second Circuit concluded the clause was not 

ambiguous because Congress “would have referred simply to ‘such violation,’ without 

use of the indefinite article, ‘a,’ which generally implies the possibility of a larger number 

than one.” See id. Instead, the Second Circuit determined the phrase referred to a type of 

violation, i.e., a violation of a condition of supervised release. See id. Although it 

expressly declined to decide the outermost extent of this jurisdiction, it held that the 

statute allowed district courts to revoke supervised release on the basis of violations when

“those violations involve conduct related to the violation charged in the timely warrant, 

 

3 We have held section 3583(i) is jurisdictional and accordingly not subject to 

equitable tolling. See Merlino, 785 F.3d at 86.
7

which conduct was disclosed to the defendant so as to afford adequate notice and 

opportunity to be heard.” Id. at 194.4

We find the Second Circuit’s reasoning persuasive and need not address the 

outermost extent of jurisdiction. An arrest warrant was issued in this case prior to the 

supervised release term’s expiration based on a petition that stated the alleged violation 

as “[d]efendant shall not possess a firearm.” App. 76. All of the subsequently added 

violations relate to the same incident—Barnes’s shooting. Mike had adequate notice and 

an opportunity to be heard on the amended violations. Accordingly, the amendment in 

this case was not improper.5

B.

Mike contends the District Court violated his due process rights during the 

 

4 The Fifth and Eleventh Circuits have similarly construed section 3583(i) to 

provide jurisdiction over violations of supervised release, even if those violations were 

not included in a timely warrant. The Fifth Circuit construed the inclusion of the 

indefinite article “a” as meaning that any violation committed during the term of 

supervised release can be added as long as a warrant or summons alleging a violation is 

timely filed. See United States v. Naranjo, 259 F.3d 379, 382–83 (5th Cir. 2001). The 

Fifth Circuit rejected the argument that an amended petition for violation is similar to a 

superseding indictment, which can only be considered timely if it does not broaden the 

charges, stating that section 3583(i) expressly extends the court’s jurisdiction, while the 

return of a timely indictment merely tolls the statute of limitations as to those charges 

included in the indictment. See id. at 383. The Eleventh Circuit also determined that, 

once a defendant is before a court, “it ha[s] the power to consider any violation of the 

terms of the release and base a revocation on it.” United States v. Presley, 487 F.3d 

1346, 1349 (11th Cir. 2007).

5 Mike contends the original violation was dismissed before the arrest warrant was 

issued and thus could not be amended. But, after review of the record, we conclude the

original violations were not dismissed, and the District Court had the authority to proceed 

on all of the violations before it. Cf. United States v. Mejia-Sanchez, 172 F.3d 1172, 

1175 (9th Cir. 1999) (“As a result of [the relationship between the district court and 

defendant], a district court may sua sponte initiate revocation proceedings whenever it 

obtains information that a defendant has violated a condition of his release.”).
8

revocation hearing by questioning witnesses and denying him the right to introduce 

Barnes’s medical records. We review due process claims de novo. United States v. 

Barnhart, 980 F.2d 219, 222 (3d Cir. 1992). We conclude those actions did not violate 

Mike’s due process rights.

In the somewhat analogous trial context, district courts may question witnesses but 

must not assume an advocacy role. See United States v. Adedoyin, 369 F.3d 337, 342 (3d 

Cir. 2004). Barnes was a largely uncooperative and reluctant witness. Although the 

District Court did take a slightly more active role, much of the questioning was aimed at 

having Barnes share additional details he would not provide under questioning by the 

government. The District Court did not assume the role of an advocate in its questioning.

We also conclude the District Court did not abuse its discretion in denying Mike 

the right to introduce Barnes’s medical records. “[A]n individual’s privacy interest in 

medical records must be balanced against the legitimate interest of others in obtaining 

disclosure.” United States v. Polan, 970 F.2d 1280, 1285 (3d Cir. 1992). In Polan, we 

held requiring the prosecutor to disclose a witness’s psychiatric records to the defense

would be duplicative where the witness’s psychiatric problems were explored effectively 

during cross-examination. See id. 

In this case, the investigatory officer testified during the revocation proceeding 

that she knew Barnes had some mental condition and that she “used to see him talking to 

himself and walking around.” App. 340. The officer testified Barnes’s mother told her 
9

he has schizophrenia and was not taking his medication at the time of the shooting.6 

Because Barnes’s mental health was already established as part of the investigatory 

officer’s testimony, introduction of his medical records would have been duplicative.

C.

Mike challenges the sufficiency of the evidence against him. We review the 

decision to revoke supervised release for abuse of discretion. United States v. Maloney, 

513 F.3d 350, 354 (3d Cir. 2008). The District Court’s factual findings are reviewed for 

clear error. United States v. Poelintz, 372 F.3d 562, 565–66 & n.6 (3d Cir. 2004). 

A supervised release violation must be proven by a preponderance of the evidence. 

See 18 U.S.C. § 3583(e). The District Court heard testimony that Barnes identified Mike 

as the shooter while in the hospital, wrote Mike’s name down as the shooter, and 

identified his picture from an array. Additionally, surveillance video showed Mike in the 

store a few minutes before the shooting. The District Court weighed this evidence 

against (1) a statement by a witness of the shooting—who did not testify—that provided a 

description of the shooter inconsistent with Mike’s appearance and (2) Barnes’s conduct 

during the hearing. Based on our review of the record, we conclude the District Court did 

not abuse its discretion when it found the violation proven by a preponderance of the 

evidence.

D.

Finally, Mike contends the District Court erred when it concluded assault with a 

 

6 These statements were introduced as part of Mike’s cross-examination of the 

investigatory officer, for the purpose of discrediting Barnes as a witness. 
10

deadly weapon or attempted murder under the Virgin Islands Code qualified as crimes of 

violence and accordingly determined either one constituted a Grade A violation. “We 

review a District Court’s interpretation of the Sentencing Guidelines de novo and its 

application of the Guidelines to the facts for clear error.” United States v. Woronowicz, 

744 F.3d 848, 850 (3d Cir. 2014).

Under the Sentencing Guidelines, Grade A violations include “conduct 

constituting . . . a federal, state, or local offense punishable by a term of imprisonment 

exceeding one year that . . . is a crime of violence.” U.S.S.G. § 7B1.1(a)(1). “Crime of 

violence” is defined in section 4B1.2. Id. cmt. 2. In turn, “crime of violence” is defined, 

in relevant part, as “any offense under federal or state law, punishable by imprisonment 

for a term exceeding one year that . . . has as an element the use, attempted use, or 

threatened use of physical force against the person of another.” Id. § 4B1.2(a)(1).

Mike’s argument assumes the categorical approach, which involves the evaluation 

of elements of the generic offense without regard to actual conduct, applies. But in the 

revocation context, “the categorical approach does not apply, and district courts may 

consider a defendant’s actual conduct.” United States v. Carter, 730 F.3d 187, 192 (3d 

Cir. 2013). Thus, “the grade of the violation is to be based on the defendant’s actual 

conduct.” Id. (quotation marks omitted) (quoting U.S.S.G. § 7B1.1 cmt. n.1); see also 

United States v. Golden, 843 F.3d 1162, 1167 (7th Cir. 2016); United States v. McNeil, 

415 F.3d 273, 278 (2d Cir. 2005). But see United States v. Willis, 795 F.3d 986, 992 (9th 

Cir. 2015) (applying the categorical approach).

Turning to Mike’s actual conduct, the District Court found by a preponderance of 
11

the evidence that Mike shot Barnes three times. Based on that finding, the District Court 

concluded Mike’s conduct qualified as assault with a deadly weapon or attempted 

murder, which was charged, and that both offenses qualified as Grade A violations. 7 We 

agree. 

IV.

For the foregoing reasons, we will affirm the revocation of supervised release and 

sentence.

 

7 Even if we engaged in the requested analysis, we would reach the same 

conclusion. We previously held murder “is generically defined as causing the death of 

another person either intentionally, during the commission of a dangerous felony, or 

through conduct evincing reckless and depraved indifference to serious dangers posed to 

human life.” United States v. Marrero, 743 F.3d 389, 401 (3d Cir. 2014). We also held 

that Pennsylvania’s murder statute, which defined third-degree murder as “an unlawful 

killing with malice but without specific intent to kill,” substantially corresponded to the 

third prong of that generic definition. Id. at 401 (quoting Commonwealth v. Dunphy, 20 

A.3d 1215, 1291 (Pa. Super. Ct. 2011)). Like Pennsylvania’s statute, the Virgin Islands 

Code defines murder as “the unlawful killing of a human being with malice 

aforethought.” 14 V.I. Code Ann. § 921. 

Under the Guidelines, an attempt to commit a crime of violence is itself a crime of 

violence. U.S.S.G. § 4B1.2, cmt. 1. And like the generic definition of attempt, which 

requires “an act or omission constituting a substantial step in a course of conduct planned 

to culminate in his commission of the crime,” Model Penal Code § 5.01(1)(c), the 

standard for determining attempt liability, under Virgin Islands law, has been defined “to 

require proof that the perpetrator took a substantial step toward completion of the 

underlying crime,” Motta v. Virgin Islands, 2004 U.S. Dist. LEXIS 25112, at *6 (D.V.I. 

2004) (collecting cases). Thus, even employing a relaxed categorical approach, 

attempted murder under the Virgin Islands Code qualifies as a Grade A violation. This 

conclusion holds true under both the 2015 and 2016 versions of the Sentencing 

Guidelines. See Marrero, 743 F.3d at 399 (“[W]e reaffirm that offenses listed in 

Application Note 1 are ‘enumerated’ for purposes of the crime-of-violence analysis.”).