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United States of America v. Spencer Durham

April 12, 2011

UNITED STATES OF AMERICA, APPELLEE,
v.
SPENCER DURHAM, DEFENDANT-APPELLANT.



Appeal from a March 9, 2010 judgment of the United States District Court for the Northern District of New York (Gary L. Sharpe, Judge).

10-1046-cr

USA v. Durham

SUMMARY ORDER

Rulings by summary order do not have precedential effect. Citation to summary orders filed on or after January 1, 2007, is permitted and is governed by Federal Rule of Appellate Procedure 32.1 and this court's Local Rule 32.1.1. When citing a summary order in a document filed with this court, a party must cite either the Federal Appendix or an electronic database (with the notation "summary order"). A party citing a summary order must serve a copy of it on any party not represented by counsel.

At a stated term of the United States Court of Appeals for the Second Circuit, held at the Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of New York, on the 12th day of April, two thousand and eleven.

PRESENT: RALPH K. WINTER, JOSE A. CABRANES, RAYMOND J. LOHIER, JR., Circuit Judges.

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the judgment of the District Court be AFFIRMED and the cause REMANDED for the limited purpose of allowing the District Court to perform the ministerial task of including a statement of reasons in the written judgment, pursuant to 18 U.S.C. § 3553(c)(2).

On November 13, 2008, defendant-appellant Spencer Durham ("defendant" or "Durham") pleaded guilty to one count of obstruction of mail, in violation of 18 U.S.C. § 1702, before the United States District Court for the District of Vermont. On December 23, 2008, he was sentenced principally to a period of time served and three years of supervised release.

At the time of his sentencing by Chief Judge Sessions in Vermont, defendant was serving a term of imprisonment for a violation of supervised release in the Northern District of New York. When that term of imprisonment was completed on January 13, 2009, defendant began the term of supervised release for his conviction of obstruction of mail. On May 21, 2009, jurisdiction over his term of supervised release was transferred from the District of Vermont to the Northern District of New York.

On November 24, 2009, the Probation Office for the Northern District of New York filed an amended petition seeking a warrant for the revocation of defendant's supervised release based on various violations of the conditions of his release, including new criminal conduct, leaving the district without permission, failing to report to his probation officer, failing to report contact with law enforcement, and failing to make restitution payments. On January 28, 2010, the parties appeared for a final revocation hearing before Judge Sharpe, which was ultimately adjourned in response to defendant's request to obtain new counsel. On February 23, 2010, the revocation hearing continued, with defendant stating that he wished to proceed with the same counsel because he could not afford new counsel.

At the February 23 hearing, defendant admitted to all of the violations in the amended petition for revocation, except the alleged violations for new criminal conduct. The District Court sentenced him principally to a term of 24 months' imprisonment, with no subsequent term of supervised release. This appeal followed. We assume the parties' familiarity with the remaining factual and procedural history of the case.

(i)

On appeal, defendant raises a claim of ineffective assistance of counsel in which he argues, among other things, that his court-appointed defense counsel*fn1 in the revocation proceedings before Judge Sharpe had a conflict of interest which caused him to fail to advocate appropriately on defendant's behalf at the revocation hearings. Specifically, defendant argues that his counsel assumed "an improper pecuniary interest in a civil lawsuit to be brought on [defendant's] behalf," and that when defendant subsequently declined to proceed with the civil lawsuit according to the terms favored by counsel, the latter retaliated against him "in anger" by declining to provide effective assistance at the hearings.

As a threshold matter, we note that Durham's right to counsel at his revocation hearings was statutory, not constitutional. See 18 U.S.C. ยง 3006A(a)(1)(E) (providing for appointment of counsel where a financially eligible defendant "is charged with a violation of supervised release or faces modification, reduction, or enlargement of a condition, or extension or revocation of a term of supervised release"); United States v. Pelensky, 129 F.3d 63, 68 n.8 (2d Cir. 1997) ("Among the fundamental constitutional protections that do not apply in the context of supervised release revocation proceedings [is] . . . the right to counsel."). Accordingly, the scope of Durham's right to effective assistance of counsel is arguably an open question in our Circuit. Cf. Smith v. Robbins, 528 U.S. 259, 284- 88 (2000) (applying the standard for ineffective assistance of counsel enunciated in Strickland v. Washington, 466 U.S. 668 (1984), to a criminal defendant's appellate counsel, even though the right to a criminal appeal is a statutory right); Nnebe v. United States, 534 F.3d ...


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