United States v. Taff

* 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that this opinion should not be published and is not precedent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.
United States Court of Appeals
Fifth Circuit
F I L E D
August 19, 2003
Charles R. Fulbruge III
Clerk
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 03-10103
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
RANDALL BENTON TAFF,
Defendant-Appellant.
--------------------
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 4:99-CR-257-2-A
--------------------
Before JONES, WIENER, and BENAVIDES, Circuit Judges.
PER CURIAM:*
Randall Benton Taff appeals from the district court’s
revocation of his probation. Taff argues that the protections
afforded by Boykin v. Alabama, 395 U.S. 238 (1969), and
FED. R. CRIM. P. 11 should be extended to probation revocation
proceedings. He contends that his revocation, therefore, should
be vacated because the district court did not inquire on the
record whether his plea of guilty was knowing and voluntary.

-- 1 of 2 --

No. 03-10103
-2-
Because Taff raises this argument for the first time on
appeal, this court’s review is for plain error only. United
States v. McIntosh, 280 F.3d 479, 482 (5th Cir. 2002) (citation
omitted). Contrary to Taff’s assertion, plain error review
applies to issues of law raised for the first time on appeal.
See United States v. Olano, 507 U.S. 725, 732-33 (1993).
In United States v. Johns, 625 F.2d 1175, 1176 (5th Cir.
1980), this court held that FED. R. CRIM. P. 11 is inapplicable to
probation-revocation hearings. The issue whether the district
court should have conducted a FED. R. CRIM. P. 11 colloquy at
Taff’s probation revocation hearing is foreclosed by Johns.
Thus, Taff fails to demonstrate that the district court erred,
plainly or otherwise, by not conducting a FED. R. CRIM.
P. 11 colloquy.
This court has not yet addressed the issue whether Boykin
is applicable to probation-revocation hearings. See Johns,
625 F.2d at 1176. Given the lack of controlling authority in
this circuit on this issue, any error by the district court
with regard to Boykin was not clear or obvious, and therefore,
does not meet the plain-error standard. See McIntosh, 280 F.3d
at 482. The Government has filed a motion to dismiss the appeal
or to summarily affirm the judgment. The motion to dismiss the
appeal is DENIED. The motion for summary affirmance is GRANTED.
AFFIRMED.

-- 2 of 2 --