Filed: Sep. 09, 2021
Latest Update: Sep. 10, 2021
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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 21-11577
Non-Argument Calendar
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D.C. Docket No. 1:19-cr-00194-JB-B-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
FREDRICK TYRONE EIRBY,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Alabama
________________________
(September 9, 2021)
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Before LAGOA, BRASHER, and EDMONDSON, Circuit Judges.
PER CURIAM:
Fredrick Eirby appeals the revocation of his probation.1 On appeal, Eirby
(1) alleges that the revocation was “fundamentally unfair” and a violation of due
process and (2) challenges the sufficiency of the evidence supporting the district
court’s determination that he committed a new criminal offense. No reversible
error has been shown; we affirm.
I. Background
In March 2020, Eirby pleaded guilty to being a felon in possession of a
firearm, in violation of 18 U.S.C. § 922(g)(1). Eirby’s sentencing guidelines range
was calculated as 18 to 24 months’ imprisonment. In the light of Eirby’s serious
medical issues 2 and the COVID-19 pandemic, the sentencing court imposed a
1
Eirby raises no challenge to the length of the sentence imposed upon revocation of his
probation.
2
The record demonstrates that Eirby suffers from several serious chronic health conditions,
requires a special diet, and takes routinely at least 15 prescription medications.
2
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below-guidelines sentence of 5 years’ probation. Among other conditions of his
probation, Eirby was (1) prohibited from committing another federal, state, or local
crime, (2) prohibited from possessing or using unlawfully a controlled substance,
(3) required to participate in a location-monitoring program, and (4) required to
submit to periodic drug testing.
In October 2020, Eirby’s probation officer petitioned for revocation of
Eirby’s probation based on Eirby’s arrest on 1 October 2020 for unlawful
possession of marijuana. Eirby’s probation officer later amended the revocation
petition to also include Eirby’s positive drug test for marijuana and cocaine on 14
December 2020.
At a hearing on 5 January 2021, the district court held in abeyance the
petition for revocation. The district court modified the conditions of Eirby’s
probation to increase the level of supervision for a six-month period. The district
court ordered Eirby to be on home confinement until he could be placed into a
Residential Re-Entry Center (“RRC”). The district court directed that -- if Eirby
committed no new probation violations for six months -- the court would dismiss
the revocation petition. Eirby later reported to the RRC on 4 February 2021.
On 12 April 2021, the district court held a status hearing to discuss ongoing
issues Eirby had been having at the RRC. The next day, Eirby was discharged
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from the RRC based in part on a verbal altercation Eirby had had with an RRC
staff member on 11 April.
The probation officer then filed a second amended petition to revoke Eirby’s
probation. In addition to the already-identified probation violations, the petition
alleged these new violations: (1) while on home confinement in January 2021,
Eirby left his residence without permission on three separate occasions; (2) on
April 13, Eirby was discharged from the RRC; and (3) Eirby failed to follow his
probation officer’s instructions to comply with the location-monitoring program, to
comply with the RRC rules, and to act in a respectful manner toward his probation
officer and RRC staff.
The district court held a revocation hearing on 27 April 2021. After
considering the parties’ arguments and witness testimony, the district court found
and concluded that Eirby violated the terms and conditions of his probation. As a
result, the district court revoked Eirby’s probation and sentenced him to 12 months
and 1 day of imprisonment.
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II. Discussion
We review the district court’s revocation of probation for abuse of
discretion. See United States v. Mitsven, 452 F.3d 1264, 1266 (11th Cir. 2006).
We review the district court’s findings of fact for clear error. United States v.
Almand,
992 F.2d 316, 318 (11th Cir. 1993). A violation of a condition of
probation must be proved by a preponderance of the evidence. See United States
v. Cunningham,
607 F.3d 1264, 1266 (11th Cir. 2010) (discussing revocation of
supervised release under 18 U.S.C. § 3583(e)); Almand,
992 F.2d at 318 n.5
(noting that the analysis of revocation of probation under 18 U.S.C. § 3565(a), and
the revocation of supervised release under 18 U.S.C. § 3583(g), are “essentially the
same”).
Eirby first contends that the district court abused its discretion by revoking
his probation based on conduct that occurred before the 12 April status hearing.
According to Eirby -- because he followed the district court’s instructions and
engaged in no new misconduct after the 12 April hearing -- the revocation of his
probation was “fundamentally unfair” and a violation of due process. 3
3
The government contends that Eirby’s due-process argument should be reviewed only for plain
error because Eirby failed to raise adequately that argument in the district court. Because Eirby
has demonstrated no error -- plain or otherwise -- we need not decide whether Eirby preserved
adequately his due-process argument.
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The district court has discretion to revoke a term of probation and to
resentence a defendant “[i]f the defendant violates a condition of probation at any
time prior to the expiration or termination of the term of probation.” 18 U.S.C. §
3565 (emphasis added).
“Defendants involved in revocation proceedings are entitled to certain
minimal due process requirements.” United States v. Frazier, 26 F.3d 110, 114
(11th Cir. 1994). Among these minimal requirements, the defendant is entitled to
(1) written notice of the alleged violation; (2) disclosure of the evidence against
him; (3) an opportunity to appear, present evidence, and question adverse
witnesses; (4) notice of the right to counsel; and (5) an opportunity to make a
statement and present mitigating evidence. See Fed. R. Crim. P. 32.1(b)(2).
As an initial matter, to the extent Eirby contends that the district court “re-
imposed” the earlier RRC condition at the 12 April hearing, that assertion is
unsupported by the record. The 12 April status hearing (which the district court
also characterized as a “revocation prevention hearing”) was held for the purpose
of informing the district court about the ongoing conflicts Eirby had been having at
the RRC. At the close of the hearing, the district court advised Eirby that -- to
avoid a custodial sentence with the Bureau of Prisons -- Eirby needed to cooperate
with the RRC staff without causing conflict. Never did the district court “re-
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impose” a probation modification or otherwise assign Eirby anew to the RRC. Nor
did the district court adjudicate the earlier-alleged probation violations.
We reject Eirby’s contention that he was given inadequate warning -- in
violation of due process -- that misconduct that pre-dated the 12 April hearing
could lead to the revocation of his probation. The record demonstrates that Eirby
had clear notice about the conditions of his probation and that violation of those
conditions could result in revocation of his probation. Eirby knew that his
probation officer had petitioned for revocation of Eirby’s probation based on
Eirby’s October 2020 arrest for unlawful possession of marijuana and on Eirby’s
December 2020 positive drug test. Eirby also knew that -- in January 2021 -- the
district court held in abeyance the revocation petition on the condition that Eirby
commit no new probation violations for six months.
Despite the district court’s lenience and ample notice of the consequences of
Eirby’s continued noncompliance, Eirby again violated the conditions of his
probation by leaving his home three times without permission in January 2021 and
by engaging in conduct that ultimately resulted in his being discharged from the
RRC in April 2021. On this record, Eirby has demonstrated no “fundamental
unfairness” or violation of his due process rights.
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Eirby next contends that the government failed to prove by a preponderance
of the evidence that Eirby committed a new criminal offense. Because Eirby
challenges only his new-offense violation and raises no challenge to the remaining
violations underlying the revocation of his probation, he cannot show that the
district court abused its discretion in revoking his probation. See United States v.
Vandergrift, 754 F.3d 1303, 1307 (11th Cir. 2014) (concluding the district court
abused no discretion in revoking a defendant’s supervised release -- “where the
district court’s decision to revoke a defendant’s supervised release is supported
adequately by one alleged violation, a possible error in consideration of other
allegations is harmless.”).
Moreover, we see no clear error in the district court’s finding that Eirby
unlawfully possessed marijuana. Under Alabama law, a person commits unlawful
possession of marijuana in the first degree if he possesses marijuana for his
personal use after having been convicted previously of unlawful possession of
marijuana in the second degree. Ala. Code § 13A-12-213. That Eirby had three
prior convictions for second-degree possession of marijuana is undisputed.
At the 27 April revocation hearing, Officer Taylor testified that he
conducted a traffic stop on a car owned and driven by Eirby in which Eirby’s adult
son was riding as a passenger. After Eirby consented to a search of the car, Officer
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Taylor found a box under the driver’s seat that contained marijuana. The
marijuana was found near receipts with Eirby’s name on them. This evidence was
sufficient to allow the district court to find, by a preponderance of the evidence,
that Eirby possessed constructively the marijuana found in the car.
In the light of evidence of Eirby’s involvement in a new drug offense and
Eirby’s other unchallenged probation violations, the district court abused no
discretion in revoking Eirby’s probation.
AFFIRMED.
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