United States of America v. Leon Martin Nisbett

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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No. 08-1875
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UNITED STATES OF AMERICA
v.
LEON MARTIN NISBETT,
Appellant
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On Appeal from the District Court of the Virgin Islands
(D. V.I. No. 03-cr-00021-001)
District Judge: Honorable Curtis V. Gomez
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Submitted Under Third Circuit LAR 34.1(a)
December 12, 2008
Before: FISHER, JORDAN and STAPLETON, Circuit Judges,
(Filed: December 15, 2008)
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OPINION OF THE COURT
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JORDAN, Circuit Judge.
Leon Martin Nisbett (“Nisbett”) appeals from a Final Judgment and Commitment
Order of the District Court of the Virgin Islands of the United States for violating the
terms of his supervised release (the “Supervised Release Revocation Order”). Nisbett’s

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attorney has filed a motion to withdraw as counsel from this case, along with a brief
pursuant to Anders v. California, 386 U.S. 738 (1967). We notified Nisbett of his right to
submit a pro se brief in support of his appeal and he has done so. For the reasons that
follow, we will grant counsel’s request to withdraw and affirm the Supervised Release
Revocation Order.
I. Background
Nisbett’s underlying conviction is for Failure to Appear, in violation of 18 U.S.C.
§ 3146(a)(1) and (b)(1)(A), and Carrying Dangerous Weapons, in violation of 14 V.I.C. §
2253(a). His sentence included a three-year term of supervised release, the terms of
which included, but were not limited to, (1) reporting to the United States Office of
Probation between the first and fifth of each month; (2) refraining from the unlawful use
of a controlled substance; (3) not leaving the District of the Virgin Islands without
permission from the Court or his probation officer; and (4) notifying the probation office
within seventy-two hours of any arrest.
In July 2007, the United States Probation Office issued a warrant for Nisbett’s
arrest for violating the terms of his supervised release by failing to report to his probation
officer. Furthermore, in January 2008, the Probation Office discovered that Nisbett was
in custody in Antigua, West Indies on suspicion of a double homicide. He was then
expelled from Antigua and, upon his arriving in Puerto Rico, was arrested on the
outstanding warrant for violating the terms of his supervised release. The Probation

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The government has the burden of proving a violation of a defendant’s supervised1
release by a preponderance of the evidence. 18 U.S.C. § 3583(e)(3); United States v.
Maloney, 513 F.3d 350, 354 (3d Cir. 2008). We review the District Court’s decision to
revoke supervised released for abuse of discretion. Maloney, 513 F.3d at 354 (citing
Virgin Islands v. Martinez, 239 F.3d 293, 297 (3d Cir. 2001)). The factual findings
supporting that decision are reviewed for clear error and the legal issues are subject to de
novo review. Id. (internal citations omitted).
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Office discovered that Nisbett had also been earlier arrested in the Virgin Islands for
possessing twenty-seven small bags of marijuana. Prior to the issuance of the arrest
warrant in July 2007, Nisbett had last reported to the Probation Office on February 2,
2007, and had failed to report his arrests.
In March 2008, the District Court held a hearing on the possible revocation of
Nisbett’s supervised release. Probation Officer Brian Smith testified about Nisbett’s
violations and, based on that evidence, the Court found that Nisbett had breached the
conditions of release and “resentenced [him] to nine (9) months incarceration with a two
(2) year period of supervised release.” (A-19, 38, 51-52.) The Supervised Release
Revocation Order was issued in April 2008 and this appeal followed.
II. Discussion
The District Court had jurisdiction over this matter pursuant to 18 U.S.C. § 3231
and 48 U.S.C. § 1612(a). We exercise jurisdiction pursuant to 28 U.S.C. § 1291.1
Our Court’s Local Appellate Rule 109.2(a) provides that “[w]here, upon review of
the district court record, trial counsel is persuaded that the appeal presents no issue of
even arguable merit, trial counsel may file a motion to withdraw and supporting [Anders]

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brief.” In considering counsel’s Anders brief, we examine: “whether counsel adequately
fulfilled the rule’s requirements,” and “whether an independent review of the record
presents any nonfrivolous issues.” United States v. Youla, 241 F.3d 296, 300 (3d Cir.
2001). To fulfill the requirements of Rule 109.2(a), the brief must “satisfy the court that
counsel has thoroughly examined the record in search of appealable issues” and “explain
why the issues are frivolous.” Id. (citing United States v. Marvin, 211 F.3d 778, 780 (3d
Cir. 2000)). At a minimum, the brief must assure us that counsel has made a
conscientious examination of the record. Id.
In this case, defense counsel’s brief plainly demonstrates the requisite examination
of the record and provides the necessary explanation as to why the issues Nisbett wishes
to raise are frivolous. We also conclude, after our own independent analysis of the
record, that this appeal presents no non-frivolous issues.
Nisbett raises several objections to the findings of the District Court. The first, an
allegation that the District Court lacked jurisdiction, is frivolous on its face and warrants
no discussion. We also decline to address the charge of ineffective assistance of counsel,
as it is well settled that such claims are generally to be raised in collateral proceedings.
United States v. Thornton, 327 F.3d 268, 271 (3d Cir. 2003). The remaining issues are
discussed briefly.

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A. The Government Had Probable Cause To Seek Revocation of Nisbett’s
Supervised Release, As Demonstrated By Sufficient Evidence
Nisbett breached the conditions of his supervised release by leaving the country
without permission and by being arrested twice and failing to report those arrests to his
probation officer. Brian Smith of the Probation Office testified to those violations. As to
the assertion that Probation Officer Smith’s testimony relied on hearsay, we note that
hearsay is permitted in revocation hearings. See FED. R. EVID. 1101(d)(3). Based on the
evidence recounted in that testimony, which supported the charged violations, the
government had probable cause to seek the revocation of Nisbett’s supervised release.
B. Nisbett Received Proper Notice Of The Revocation Hearing And The
Alleged Violations
Nisbett broadly asserts that his due process rights were violated because he didn’t
receive adequate notice of the alleged violations. The District Court addressed at the
revocation hearing the alleged deficiencies in the notice, and Nisbett’s counsel
acknowledges that Nisbett “was given written notice of the claimed violations of the
supervised release and the evidence against him.” (Appellant Br. at 7 (citing United
States v. Maloney, 513 F.3d 350, 356 (3d Cir. 2008) (citing, inter alia, FED. R. CRIM. P.
32.1)).) Nisbett has not provided any evidence to the contrary.
Nisbett also argues that his due process rights were violated because the revocation
hearing occurred in St. Thomas, while he had a right to be heard in St. Croix, where the
warrant was issued. Both St. Thomas and St. Croix fall within the jurisdiction of the

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This qualification implies nothing about the merits of any such claim.2
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District Court of the Virgin Islands. There is no right to be heard in a specific courthouse
within the jurisdiction of that Court. In short, there is nothing to suggest a deprivation of
due process in this case.
III. Conclusion
Accordingly, counsel’s request to withdraw will be granted and the District
Court’s Supervised Release Revocation Order will be affirmed, without prejudice to any
ineffective assistance of counsel claim Nisbett may choose to pursue hereafter in an
appropriate proceeding.2

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