* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not

be published and is not precedent except under the limited circumstances set forth in 5TH CIR.

R. 47.5.4.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 07-60934

Summary Calendar

UNITED STATES OF AMERICA

Plaintiff-Appellee

v.

MIMS GRAY

Defendant-Appellant

Appeal from the United States District Court

for the Southern District District of Mississippi

USDC No. 1:01-CR-137-1

Before JONES, Chief Judge, and STEWART and OWEN, Circuit Judges.

PER CURIAM:*

In 2002, Mims Gray pleaded guilty to possession with intent to distribute

crack cocaine, in violation of 21 U.S.C. § 841(a)(1), and was sentenced to 70

months in prison and four years of supervised release. Gray was released from

custody in November 2006. Four months later, in March 2007, Gray was

arrested for possession with intent to distribute cocaine. Based on this conduct,

the district court revoked Gray’s supervised release and sentenced him to 36

United States Court of Appeals

Fifth Circuit

F I L E D

November 17, 2008

Charles R. Fulbruge III

Clerk
No. 07-60934

2

months of imprisonment, with no further supervised release to follow. Gray now

appeals that revocation decision.

A district court may revoke a defendant’s supervised release if it finds by

a preponderance of the evidence that a condition of release has been violated.

UnitedStates v. McCormick, 54 F.3d 214, 219 (5th Cir. 1995). This court reviews

for abuse of discretion a decision to revoke supervised release. Id. Questions of

constitutional violations are reviewed de novo. See United States v. Webster, 162

F.3d 308, 333 (5th Cir. 1998). For the first time on appeal, Gray argues that he

was denied due process because the revocation notice he received alleged that

he possessed a controlled substance but the district court based its decision on

possession with intent to distribute a controlled substance. Because Gray had

the opportunity to make this objection to the district court but did not, our

review is for plain error. See United States v. Green, 324 F.3d 375, 381 (5th Cir.

2003). Under the plain error standard, the appellant must show: (1) that there

is an error; (2) that the error is clear or obvious; and (3) that the error affects his

substantial rights. See United States v. Olano, 507 U.S. 725, 731-37 (1993). If

these factors are established, the decision to correct the forfeited error is within

the court’s sound discretion, which will not be exercised unless the error

seriously affects the fairness, integrity, or public reputation of judicial

proceedings. Id. at 736.

Due process generally requires written notice of alleged violations,

Morrissey v. Brewer, 408 U.S. 471, 489 (1972); United States v. Holland, 850

F.2d 1048, 1050-51 (5th Cir. 1988) (probation revocation); FED. R. CRIM. P. 32.1.

Gray does not dispute that he received written notice of the alleged violation.

Gray argues, rather, that the notice he received was insufficient.

Gray’s arguments that he received inadequate notice are unpersuasive.

One of the mandatory conditions of Gray’s supervision was that he not “illegally

possess a controlled substance.” Another standard condition provided that Gray

“shall not purchase, possess, use, distribute, or administer any controlled
No. 07-60934

3

substance.” Gray was notified that he violated these conditions of release when

he was arrested in Gulfport for cocaine possession. The notice specifically

detailed that Gray was arrested by the Gulfport Police Department Narcotics

Division on March 14, 2007, and that Gray was in possession of 84 grams of

cocaine when he was arrested.

The petition for arrest warrant further stated that “[b]ecause this arrest

just occurred yesterday evening, no official arrest report is available as of this

writing.” The officers’ testimony during Gray’s revocation hearing expanded

upon the information contained in the petition. Indeed, one of the officers

testified that after Gray was arrested, Gray acknowledged he was being charged

with possession with intent to distribute. Moreover, Gray admitted that he was

on his way to deliver three ounces of cocaine when the police stopped him.

Our review of the record establishes that Gray had adequate notice of his

alleged controlled substance violation which formed the basis of the revocation

and of the evidence against him. That the judgment mentioned 21 U.S.C. § 841

in the judgment was immaterial to the notice or result of the revocation

proceeding. Gray has failed to demonstrate error, plain or otherwise, with

regard to the process he received in connection with the revocation of his

supervised release. See McCormick, 54 F.3d at 221.

AFFIRMED.