Waiver of counsel; Whether defendant’s waiver of counsel was “knowing”; Whether the Sixth Amendment applies to revocations of supervised release; Morrissey v Brewer; United States v Kirby; Adequacy of the district court’s colloquy; Sentencing; Procedural reasonableness; 18 USC § 3583(e); § 3553(a)(2)(A); Esteras v United States

The court affirmed the district court’s ruling permitting defendant-Spence to represent himself at his supervised release revocation hearing, concluding the district court’s thorough colloquy and repeated assurances precluded finding an abuse of discretion. It also rejected his procedural reasonableness challenge to his sentence on revocation. This appeal concerned his third revocation of supervised release, which arose after he was arrested on state FIP and drug charges. He chose to represent himself at his revocation hearing. Before granting his motion, the district court conducted a waiver-of-counsel hearing where it determined that Spence’s request was “knowing and voluntary” after informing him of his rights and the possible penalties. At the revocation hearing, his supervised release was revoked, and he was sentenced to 24 months. He first argued on appeal that the district court erred by allowing him to represent himself. The court first considered “the nature of the right being waived, which” informed its standard of review. It noted that “Morrissey held that the Sixth Amendment does not apply to parole revocation in a state system, a holding” the court extended in Kirby “to the revocation of federal supervised release.” Joining other circuits, the court held that an abuse of discretion standard applies to “review of a district court’s acceptance of a waiver of counsel as part of a revocation proceeding.” It found that “the district court did not abuse its discretion in concluding that Spence’s waiver was knowing. Start with the colloquy between the district court and Spence. The thoroughness of [its] inquiry was highly probative of the validity of” Spence’s waiver. It “well exceeded the requirements of due process . . . .” His procedural reasonableness sentencing challenge also failed. “The district court’s use of the word ‘penalty’ was not a retributive invocation of § 3553(a)(2)(A)’s ‘just punishment’ concept.” Nothing suggested that it “was appealing to the seriousness of the underlying crime of conviction, the concern at issue in Esteras.” The same was true as to its “reference to ‘the nature of the offense.’” Read in context, it “was describing the supervised release violations before it—explicitly identifying them as ‘Grade A violations,’ the most serious offense category. Under Esteras, the seriousness and nature of the supervised release conduct remains a permissible consideration; only the seriousness of the underlying federal offense is off limits.”