United States of America v. Darrius D. Agnew

United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Argued July 10, 2024
Decided August 6, 2024
Before
MICHAEL Y. SCUDDER, Circuit Judge
DORIS L. PRYOR, Circuit Judge
JOSHUA P. KOLAR, Circuit Judge
No. 23-3124
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
DARRIUS D. AGNEW,
Defendant-Appellant.
Appeal from the United States District
Court for the Northern District of
Indiana, South Bend Division.
No. 3:13CR9-001
Damon R. Leichty
Judge.
O R D E R
After Darrius Agnew was accused of violating the terms of his supervised
release, the district court revoked Agnew’s term of supervision and sentenced him to 24
months’ imprisonment, a sentence Agnew now appeals. He argues that the district
court violated his rights under Rule 32.1 of the Federal Rules of Criminal Procedure by
not ensuring that his waiver of a preliminary hearing was knowing and voluntary.
Because Agnew had no right to a preliminary hearing and he received the due process
to which he was entitled, we affirm.
Agnew pleaded guilty in 2013 to possessing a stolen firearm, see 18 U.S.C.
§ 922(j), and was sentenced to 120 months in prison and two years of supervised release.
NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with FED. R. A PP. P. 32.1

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No. 23-3124 Page 2
He was released in early 2022. About a year later, his probation officer petitioned for
revocation of his supervised release based on three alleged violations. The only relevant
violation (for purposes of this appeal) was Agnew’s recent domestic battery charge in
Indiana, 35-42-2-1.3(a)(1)—a violation of his supervised release condition that he not
commit a federal, state, or local crime. Agnew was alleged to have grabbed the hair of
Ashley Murphy, the mother of one of his children, and dragged her across the street
before her friends intervened and stopped him.
At Agnew’s initial appearance, the magistrate judge reviewed the allegations of
the violations in Agnew’s supervised release petition and the possible penalties. The
magistrate judge explained that the domestic battery charge in Indiana correlated with
a Grade C violation in the United States Sentencing Guidelines and a suggested
guidelines sentencing range of 8 to 14 months’ imprisonment, but any range of
incarceration between zero and two years could be chosen. The judge also asked Agnew
if he wanted a hearing on the issue of probable cause. Agnew responded yes, and the
judge scheduled the hearing for another date.
Two weeks later (and on the day before the scheduled preliminary hearing to
determine probable cause), Agnew stipulated in writing that probable cause existed for
the allegations and “further stipulate[d] to waiver of the preliminary hearing.” The
magistrate judge then dismissed the scheduled hearing.
A week later, the probation office submitted to the district court a Summary
Report of Violations. The report confirmed that Agnew’s Indiana charge correlated to a
Grade C violation with a recommended imprisonment range of 8 to 14 months. The
report also stated that Agnew faced a two-year statutory maximum prison term.
Half a year later (in advance of Agnew’s revocation hearing), the probation office
released a revised Summary Report. This report explained that under Ind. Code § 35-42-
2-1.3(b)(1)(A), Agnew’s domestic battery charge qualified as a felony punishable by a
term of imprisonment exceeding one year and constituted a Grade B violation in the
Sentencing Guidelines.0F
1 Based on the change in grade, Agnew’s recommended
guidelines range increased from 8 to 14 months’ imprisonment to 21 to 27 months.
1 The probation report does not explain why the probation office reclassified Agnew’s
offense conduct from a misdemeanor to felony. But at Agnew’s revocation hearing, the
government stated that his offense qualified for an enhancement under the relevant

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No. 23-3124 Page 3
At the start of the revocation hearing, the government announced its intent to treat
Agnew’s domestic battery offense as a felony. Agnew’s counsel then alerted the court
that the change was “an issue” because Agnew had been advised only that his conduct
was a Grade C violation. The court explained to Agnew that notwithstanding any
increase in the recommended guideline range, the statutory range stayed the same. The
court confirmed with Agnew that he understood the change, provided time for Agnew
to confer with counsel, and then confirmed with Agnew that he had enough time with
counsel to discuss his questions.
The court proceeded with the hearing, at which time both Agnew and the
government presented and cross-examined witnesses. The court then found by a
preponderance of the evidence that Agnew had committed the battery (as well as his
other two violations) and sentenced him to 24 months’ imprisonment with no
additional term of supervised release.
On appeal, Agnew argues that the district court did not adequately ensure that
his waiver of a preliminary hearing was knowing and voluntary and thus violated his
right to such a hearing under Federal Rule of Criminal Procedure 32.1(b)(1). He
maintains that his waiver was unknowing because the magistrate judge advised Agnew
that he was being charged with a Grade C rather than a Grade B violation. He relies on
United States v. LeBlanc, 175 F.3d 511, 517–18 (7th Cir. 1999), in which this court held that
a defendant’s waiver of his right to a revocation hearing was not knowing or voluntary
because the record revealed that he did not fully understand the constructive-
possession charge against him or the possible upward-departure penalty he faced.
Agnew’s argument fails for three reasons. First, he had no right to a preliminary
hearing because he was not in federal custody before the revocation hearing. The
custody requirement, in fact, is mentioned twice in Rule 32.1. Rule 32.1(a)(3)(C) states
that the defendant must be notified of his right to a preliminary hearing “if held in
custody.” FED. R. C RIM. P. 32.1. And Rule 32.1(b)(1)(A) states that a judge must hold a
hearing “if a person is in custody.” Id.; see also id., advisory committee’s note to the 1979
amendment (“If there is to be a revocation hearing but there has not been a holding in
custody for a probation violation, there need not be a preliminary hearing.”). The
reason for the custody requirement is to ensure that the defendant’s liberty interest not
Indiana statute because he had five prior battery convictions. See Ind. Code § 35-42-2-
1.3(b)(1)(A).

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No. 23-3124 Page 4
be infringed by being imprisoned without probable cause. See United States v. Sciuto, 531
F.2d 842, 846 (7th Cir. 1976). Because Agnew was not in custody, he was not entitled to
a preliminary hearing, and he cannot plausibly argue that he was wrongfully deprived
of one.
Second, Agnew received all the notice to which he was entitled before his
revocation hearing. A defendant facing revocation is entitled to a basic description of
the facts that provide “written notice of the alleged violation.” Karst, 948 F.3d at 863;
FED. R. C RIM. P. 32.1(b)(2)(A). True, the probation office classified Agnew’s domestic
batter offense as a Grade B violation rather than a Grade C violation in its revised
Summary Report. But that report did not deprive Agnew of constitutionally or
statutorily required notice because he received such notice: The petition and initial
probation reports informed him of the incident that was the basis of the violation and
the applicable statutory penalty. This is sufficient under our case law. See United States
v. Lee, 795 F.3d 682, 686–87 (7th Cir. 2015) (rejecting argument that defendant is entitled
to receive notice of the “specific statute” he is charged with violating, as long as he is
apprised of condition he violated, dates of violation, and police report describing
violation received); see also United States v. Sistrunk, 612 F.3d 988, 992 (8th Cir. 2010)
(rejecting argument that defendant entitled to notice of specific statute he was charged
with violating, as long as he was apprised of underlying factual allegations that he
would have to defend against).
Third, the lack of a preliminary hearing could not have prejudiced Agnew
because he had a valid revocation hearing which showed that he violated supervision.
See Karst, 948 F.3d at 862 (defendant’s substantial rights not affected by lack of
preliminary hearing because he had full opportunity at revocation hearing to contest
the facts underlying the charges against him). Agnew was allowed to confer with
counsel over questions relating to the change in grade violation; he then had a full
revocation hearing where his counsel cross-examined witnesses and presented his own
witness in defense; and he has not argued that he would have done anything differently
at the revocation hearing or that he was in any way prejudiced by the lack of
preliminary hearing. See id., 948 F.3d at 862; see also Lee, 795 F.3d at 688 (“vague
possibility” that defendant, had he known specific statutory provision, would have
cross-examined government’s witnesses differently was not enough to show prejudice).
AFFIRMED

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