U.S. Court of Appeals for the Second Circuit, 2008

United States v. Fleming

United States v. Fleming
U.S. Court of Appeals for the Second Circuit · Decided April 14, 2008
273 F. App'x 87

United States v. Fleming

Opinion of the Court

SUMMARY ORDER

Defendant-appellant Warren Fleming appeals from a judgment of the District Court, revoking Fleming’s supervised release and sentencing him to forty-eight months’ imprisonment on the ground that he violated his conditions of release by committing additional state crimes. Fleming contends that it was plain error for the *88District Court to find, by a preponderance of the evidence, that he had committed these crimes because the Fifth and Sixth Amendments to the U.S. Constitution require that a jury make such findings beyond a reasonable doubt.

We have previously considered and rejected Fleming’s contention. See United States v. Carlton, 442 F.3d 802, 809 (2d Cir. 2006) (“Given a prior conviction and the proper imposition of conditions on the term of supervised release, when a defendant fails to abide by those conditions the government is not then put to the burden of an adversarial criminal trial. Instead, there is, as in this case, a revocation of release hearing at which, as the Supreme Court instructs, neither the right to a jury trial, nor proof beyond a reasonable doubt is required.”); United States v. McNeil, 415 F.3d 273, 277 (2d Cir. 2005) (“[A] violation of supervised release is not a separate basis for criminal punishment that requires a jury verdict and all that entails.”).

Recognizing that these precedents remain in force within our circuit, Fleming urges us to reverse our prior holdings, but he fails to offer a persuasive reason — and we are aware of none — to do so.

Accordingly, we AFFIRM the judgment of the District Court.

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