US v. Miguel Arellano

Filing

UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 3:00-cr-00212-FDW-2 Copies to all parties and the district court/agency. [999794241].. [15-4444]

Appeal: 15-4444

Doc: 25

Filed: 04/13/2016

Pg: 1 of 4

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 15-4444

UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
MIGUEL ELOIZA ARELLANO,
Defendant - Appellant.

Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte.
Frank D. Whitney,
Chief District Judge. (3:00-cr-00212-FDW-2)

Submitted:

March 30, 2016

Decided:

April 13, 2016

Before WILKINSON, WYNN, and THACKER, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Matthew Collin Joseph, Charlotte, North Carolina, for Appellant.
Jill Westmoreland Rose, United States Attorney, Anthony J.
Enright, Assistant United States Attorney, Charlotte, North
Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

Appeal: 15-4444

Doc: 25

Filed: 04/13/2016

Pg: 2 of 4

PER CURIAM:
Miguel

Eloiza

Arellano

appeals

the

revocation

supervised release and resulting 30-month sentence.

of

his

Arellano

argues that the district court erred in denying his motion to
dismiss

the

“Petition

for

Warrant

for

Offender

Under

Supervision,” alleging he was deprived of due process when the
hearing was not held within a “reasonable time” as required by
Fed. R. Crim. P. 32.1(b)(2).

We affirm.

Due process requires that a revocation hearing “be tendered
within

a

reasonable

time

after

the

parolee

is

custody” for violating the conditions of parole.
Brewer, 408 U.S. 471, 488 (1972).

taken

into

Morrissey v.

The same protections granted

those facing parole revocation are extended to those facing the
revocation of supervised release.

Fed. R. Crim. P. 32.1(b);

United States v. Copley, 978 F.2d 829, 831 (4th Cir. 1992).

The

Supreme Court has also stated that, because “the loss of liberty
as a parole violator does not occur until the parolee is taken
into custody,” there is “no constitutional duty to provide [the
parolee]

an

adversary

parole

hearing

custody as a parole violator.”

until

he

is

taken

into

Moody v. Daggett, 429 U.S. 78,

87-89 (1976).
Rule

32.1

requires

that

a

court

“hold

the

revocation

hearing within a reasonable time in the district court having
jurisdiction.”

Fed. R. Crim. P. 32.1(b)(2).
2

Arellano argues

Appeal: 15-4444

that

Doc: 25

a

“delay

Filed: 04/13/2016

of

Pg: 3 of 4

approximately

six

(6)

years

and

seven

(7)

months between the filing of the petition and a final supervised
release hearing was not within a ‘reasonable time’” as required
under . . . Rule 32.1(b)(2) particularly when [his] whereabouts
were known the entire time.”
The

Government

constitutional

right

contends
to

an

Arellano

adversarial

did

not

hearing

have

until

taken into custody pursuant to the alleged violation.

he

a
was

Indeed,

the execution of a warrant for a parole violation and the taking
into federal custody of the parole violator “is the operative
factor in triggering the availability of the revocation hearing”
required by Morrissey.
circuits

also

have

See Moody, 429 U.S. at 87-89.

concluded

that

the

revocation

Other
hearing

required by Rule 32.1(b) must be held within a reasonable time
after the offender is taken into federal custody for violating
the

conditions

United

States

of
v.

his

probation

Pardue,

363

or

F.3d

supervised
695,

698

release.

(8th

Cir.

See
2004)

(“Rule 32.1 exists to protect the probationer from undue federal
incarceration and to protect the probationer’s ability to defend
the violation allegations. . . .
state

charges,

no

undue

federal

Because of Pardue’s pending
incarceration

occurred.”);

United States v. Chakledar, 987 F.2d 75, 77 (1st Cir. 1993)
(“[T]here is ‘no constitutional duty to provide petitioner an
adversary parole hearing until he is taken into custody as a
3

Appeal: 15-4444

Doc: 25

Filed: 04/13/2016

Pg: 4 of 4

parole violator.’” (quoting Moody, 429 U.S. at 89)); McDonald v.
N. M. Parole Bd., 955 F.2d 631, 633 (10th Cir. 1991) (noting
“hearing
final

requirements

revocation

and

hearing

time
“must

limitations”
be

adhered

to

applicable
only

to

after

parolee is taken into custody as a parole violator”).

a

the

Arellano

points to no legal authority holding otherwise.
Arellano was taken into custody pursuant to the Petition on
March 25, 2015.

After making an initial appearance on April 15,

he appeared for a preliminary hearing before a magistrate judge
on April 20, 2015.
July 7, 2015.

His supervised release hearing was held on

Arellano does not argue, nor do we find, that the

time between being taken into federal custody on the violation
until the hearing was unreasonable under Rule 32.1(b)(2).
Accordingly, we affirm the judgment.

We dispense with oral

argument because the facts and legal contentions are adequately
presented in the materials before this court and argument would
not aid the decisional process.
AFFIRMED

4