Submitted: December 11, 2017
from United States District Court for the Northern District
of Iowa - Cedar Rapids
WOLLMAN, LOKEN, and MELLOY, Circuit Judges.
serving a sixty-three month felon-in-possession sentence,
Jesse Alvarez began a three-year term of supervised release.
On October 7, 2016, his probation officer petitioned the
district court to revoke supervised release. The petition
alleged multiple violations of drug-testing conditions and
that Iowa prosecutors had charged him with a new crime,
domestic abuse assault by strangulation, when he attempted to
strangle his ex-girlfriend. See Iowa Code §
708.2A(5). Alvarez admitted the drug-testing violations but
disputed the new law violation, citing his not-guilty plea to
the pending state court charges. The district
court denied his request to delay the revocation
proceeding until the Iowa criminal case concluded.
revocation hearing, the government introduced through
Muscatine Police Officer Andrew Fry recordings of Fry's
interviews of Alvarez's ex-girlfriend and her daughter
immediately after the encounter. The ex-girlfriend related
that she refused to accompany Alvarez to his new apartment,
he tried to drag her to his car, and he choked her, causing
her to pass out. Officer Fry observed fresh scratches around
the ex-girlfriend's neck, consistent with photos of her
injuries and her statement that Alvarez choked her. After Fry
testified, Alvarez stipulated that his ex-girlfriend and her
daughter, who were present in the courtroom, would testify
"substantially in accordance with" the recordings.
He also stipulated that he lived with his ex-girlfriend until
September 22, 2016, establishing the "domestic"
element of the Iowa domestic abuse charge. Alvarez offered no
the close of evidence, the district court denied
Alvarez's renewed request to postpone the revocation
decision and found, based on a preponderance of the evidence,
that Alvarez committed the Grade A supervised release
violation of felony domestic abuse assault by strangulation
in violation of Iowa law. The court revoked supervised
release and sentenced Alvarez to 24 months in prison, the
maximum revocation term for his underlying
felon-in-possession conviction. See 18 U.S.C. §
3583(e)(3). Three days after Alvarez filed this appeal, the
state court dismissed the domestic-abuse-by-strangulation
charge. On appeal, Alvarez argues the district court abused
its discretion by denying his request to postpone the
proceeding and revoking his supervised release based on a
finding that he violated the Iowa domestic abuse law when
state criminal charges were still pending. He cites no
authority supporting this contention. We conclude it is
without merit and affirm.
review a district court's decision to revoke supervised
release for abuse of discretion. "A district court may
revoke supervised release and impose an authorized prison
sentence if it finds by a preponderance of the evidence that
the defendant violated a condition of supervised
release." United States v. Montgomery, 532 F.3d
811, 814 (8th Cir. 2008). Alvarez concedes, as he must, that
the district court had jurisdiction to proceed with the
revocation and to find that he violated a condition of his
supervised release by committing a new violation of state law
before he was convicted of charges related to that violation.
See United States v. Poellnitz, 372 F.3d 562, 566
(3d Cir. 2004) ("When the condition is that the
defendant not commit a crime, there is no requirement of
conviction or even indictment" before concluding
defendant violated that condition); accord Jianole v.
United States, 58 F.2d 115, 118 (8th Cir. 1932)
("[T]he power to finally revoke in advance of and
independent of the result of a trial of the criminal charge
will of itself add greatly to the effectiveness of
argues the district court abused its discretion by conducting
the revocation proceeding before the state law domestic abuse
charges were resolved because he was forced to make an
"untenable" choice -- either testify in the
revocation proceeding, prejudicing his defense in subsequent
state court proceedings, or remain silent, hampering his
defense to the supervised release revocation allegation. We
reject his suggestion that this choice interfered with his
Fifth Amendment right against compelled self-incrimination.
Just as the Second Circuit concluded in United States v.
Jones, 299 F.3d 103, 110 (2d Cir. 2002), Alvarez was not
"compelled" to testify at the revocation hearing.
The district court noted that he could have defended himself,
for example, by cross-examining his ex-girlfriend, putting
the government to its proof, and making legal objections.
Alvarez attempts to distinguish Jones by arguing
that his testimony was necessary in order to disprove the
assault charge by establishing that he acted in self-defense
or defense-of-another. But even if choosing to testify would
give state prosecutors an opportunity to "preview"
his defense to the state court charges, "[t]he Fifth
Amendment does not immunize a defendant from all the
potentially negative consequences of" choosing to
testify or remain silent. Id. at 111.
district court acted well within its discretion in proceeding
with Alvarez's revocation in an efficient, legally
permissible manner, and the evidence at the revocation
hearing overwhelmingly supported the district court's
finding that Alvarez committed a Grade A supervised release
violation. The revocation judgment of the district court is
The Honorable Linda R. Reade, United
States District Judge for the Northern District ...