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United States v. Engles

United States Court of Appeals, Tenth Circuit

March 4, 2015

UNITED STATES OF AMERICA, Plaintiff - Appellee,
v.
BILLY WAYNE ENGLES, Defendant - Appellant

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF OKLAHOMA. (D.C. No. 6:10-CR-00017-RAW-1).

For United States of America, Plaintiff - Appellee: Linda A. Epperley, Shannon Henson, Office of the United States Attorney, Muskogee, OK.

For Billy Wayne Engles, Defendant - Appellant: Jimmy Lance Hopkins, Esq., J. Lance Hopkins, Tahlequah, OK.

Before BACHARACH, BALDOCK, and McHUGH, Circuit Judges.[*]

OPINION

BALDOCK, Circuit Judge.

Defendant Billy Engles appeals from the revocation of his federal supervised release based on a criminal conviction in state court. Because his direct appeal asserts only a collateral attack on his state court conviction, we dismiss his appeal.

Defendant is a registered sex offender in the State of Oklahoma. In 2013, he was

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on federal supervised release for an unrelated federal offense. A condition of Defendant's supervised release stated that he " shall not commit another federal, state or local crime."

On September 5, 2013, Defendant accompanied his then live-in girlfriend to her sixteen-year-old daughter's high school to update the daughter's emergency contact form. Defendant and his girlfriend updated the daughter's address to Defendant's home, and added Defendant as a person authorized to pick up the daughter from school. Defendant and his girlfriend spent approximately 10 minutes on campus completing this task.

One of the school employees recognized Defendant as a sex offender, and reported his visit. Based on this 10-minute visit to the school, Oklahoma charged Defendant with violating Oklahoma's Zone of Safety Around Schools statute, which prohibits sex offenders from " loitering" at or near schools. See Okla. Stat. Ann. tit. 21, § 1125(A)(1). Defendant argued in state court that he was not " loitering" because he went to the school very briefly to perform a specific task. The state judge and jury rejected Defendant's argument, convicted him, and imposed a sentence of time served plus a $2,500 fine. Defendant's appeal from this conviction is now pending in Oklahoma state court.

Based on this state conviction, the district court revoked Defendant's federal supervised release. Defendant argued before the district court that he was appealing his Oklahoma conviction and that he never loitered at the school. Defendant clarified, however, that this argument " to be honest is going to be more for a sentencing phase if applicable." The federal Sentencing Guidelines recommended a revocation sentence of 7 to 13 months' imprisonment. The district court ultimately sentenced Defendant to 13 months' imprisonment followed by an additional 24 months of supervised release.

We normally review a district court's decision to revoke supervised release for an abuse of discretion. See United States v. Reber, 876 F.2d 81, 83 (10th Cir. 1989). On appeal, however, Defendant does not dispute that his " criminal conviction clearly provided an adequate evidentiary basis for the district court's revocation order." United States v. Garza, 484 F.2d 88, 89 (5th Cir. 1973) (per curiam). Instead, his brief states that " the only issue" on appeal " is whether or not the conduct complained of [in Oklahoma state court] constituted 'loitering.'" Defendant therefore asserts only a straightforward collateral attack on his state court conviction.

Defendant's challenge is indistinguishable from the challenge raised in United States v. Knight,16 F.3d 418 (table), 1994 WL 3365, at *1 (10th Cir. 1994) (unpublished).[1] In Knight, we declined to entertain a probationer's collateral attack on the state municipal court conviction that formed the basis for the revocation of his federal probation.[2] As we ...


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