428 F. App'x 832
10th Cir.2011Background
- Broemmel pleaded guilty in 2002 to mail fraud and money laundering; sentenced to 41 months and supervised release terms of five years (mail fraud) and three years (money laundering).
- He was released from federal custody on August 17, 2004 and began serving his five-year supervised release; a state warrant led to Kansas custody starting December 14, 2005, with one year in state prison for a felony DUI charge.
- The government contends his federal supervised release tolled during the year in state custody, delaying expiration to August 16, 2010.
- In 2008–2010, Kansas charges led to a Colorado revocation petition; summons for revocation was issued August 4, 2010 and served August 6, 2010.
- A September 10, 2010 revocation hearing occurred without counsel present; testimony from the probation officer established violations; Broemmel argued tolling issues; he was sentenced to eight months in prison.
- The district court’s decision to revoke and impose imprisonment was affirmed on appeal; issues raised included expiration timing, due process, and right to counsel.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the district court had jurisdiction to revoke after expiration | Broemmel | Government | Jurisdiction affirmed; summons issued before expiration; tolling considered. |
| Whether Kansas imprisonment tolled supervised release | Broemmel | Government | Tolled during Kansas imprisonment; work release counted as imprisonment for tolling. |
| Whether notice via the Report violated due process | Broemmel | Government | No plain error; substantial other evidence supported violations. |
| Whether failure to grant an initial appearance violated due process | Broemmel | Government | No plain error; waiver by not requesting a hearing. |
| Whether right to counsel was violated at revocation hearing | Broemmel | Government | No violation; defendant could speak effectively; no substantial deficiency. |
Key Cases Cited
- United States v. Johnson, 581 F.3d 1310 (11th Cir. 2009) (de novo jurisdiction review for supervised-release revocation)
- United States v. Roberts, 185 F.3d 1125 (10th Cir. 1999) (jurisdictional challenges reviewed de novo)
- Gagnon v. Scarpelli, 411 U.S. 778 (Supreme Court 1973) (right to counsel relied upon in revocation proceedings)
- Eskridge v. United States, 445 F.3d 930 (7th Cir. 2006) (due-process considerations in revocation proceedings; speaking for oneself)
- United States v. Spangle, 626 F.3d 488 (9th Cir. 2010) (Sixth Amendment rights in supervised-release context)