United States v. Santirosa

* 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that this opinion should not be published and is not precedent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
April 15, 2004
Charles R. Fulbruge III
Clerk
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 03-50777
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
DEVON JOHNATHAN SANTIROSA,
Defendant-Appellant.
--------------------
Appeal from the United States District Court
for the Western District of Texas
USDC No. A-03-CR-113-ALL-SS
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Before REAVLEY, JONES and PRADO, Circuit Judges.
PER CURIAM:*
Devon Johnathan Santirosa appeals the 24-month statutory
maximum sentence he received following the revocation of his
supervised release. He contends that the district court violated
his due process rights and FED. R. CRIM. P. 32 when it departed
upwardly from the recommended guidelines range based on factors
not disclosed to him prior to the revocation hearing, depriving
him of the opportunity to respond adequately or to present any
mitigating evidence.

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No. 03-50777
-2-
Santirosa is correct that persons on supervised release are
entitled to procedural due process in connection with revocation
of that release, including notice of the evidence to be used
against him. See United States v. Ayers, 946 F.2d 1127, 1129
(5th Cir. 1991); Morrissey v. Brewer, 408 U.S. 471, 488-89
(1972); FED. R. CRIM. P. 32.1. However, the policy statements
contained in Chapter 7 of the Sentencing Guidelines regarding
supervised-release revocations are advisory only and do not bind
sentencing courts at a revocation hearing. See United States v.
Escamilla, 70 F.3d 835 (5th Cir. 1995); United States v. Mathena,
23 F.3d 87, 89-93 (5th Cir. 1994). The same stringent due
process and Rule 32 standards regarding notice of factors for
departures under the guidelines do not apply to departures from
non-binding, advisory policy statements. See United States v.
Hofierka, 83 F.3d 357, 362 (11th Cir. 1996).
Because a sentencing court in revocation proceedings is
not required to give notice of its intent to depart from the
policy statements, there is likewise no requirement that it give
notice of the reasons for such departure from them. Id. at 7-8.
Contrary to his assertion, Santirosa had no due process right to
notice of the evidence that the district court might rely on to
exceed the recommended guidelines range and impose the statutory
maximum sentence. See id. He received sufficient notice that
he faced a 24-month sentence by virtue of the statute and the
court’s admonition at the revocation hearing. See id.; see also

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No. 03-50777
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18 U.S.C. § 3583(e)(3). Santirosa’s due process challenge fails,
and the district court’s judgment is AFFIRMED.

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