United States v. Frank F. Colacurcio, Sr.

Defendant Frank F. Colaeurcio appeals the district court’s order revoking his probation in a felony case and sentencing him to 36 months imprisonment. A federal magistrate judge held a probation revocation hearing under a district court local rule without defendant’s consent. After .the hearing, the magistrate judge filed a report and recommendation, which the district court adopted. The district court had jurisdiction under 18 U.S.C. § 3231 (1996). We have jurisdiction under 28 U.S.C. § 1291 (1996).

We must decide whether a magistrate judge has authority under the Federal Magistrates Act, 28 U.S.C. § 636 (1996), to conduct a probation revocation hearing without defendant’s consent. We reverse and remand. We hold that a magistrate judge has authority to conduct a probation revocation hearing only with defendant’s consent and only for probation imposed in a misdemeanor case. On remand, the district court is instructed to conduct a new probation revocation hearing.

BACKGROUND

The underlying facts are not in dispute. On April 12, 1991, the defendant plead guilty to a felony, aiding and assisting in the preparation and presentation of false corporate tax returns for 1984. The…